•>.»*••».•»«».  J 


CHIEF    [USTICES 


OF  ENGLAND 


LIVES 


OF  THE 


CHIEF  JUSTICES  OF  ENGLAND. 


TJ1E    STAR    CHAMBER. 


THE     LIVES 


OF 


THE   CHIEF  JUSTICES 


OF 


ENGLAND. 


BY 

LORD    CAMPBELL, 

AUTHOR    Of 
THE    LIVES    OF   THE    LORD    CHANCELLORS    OF    ENGLAND. 


VOL.  I. 


NEW  YORK: 
GEORGE  W.  SMITH  &  COMPANY 

LAW  BOOKSELLERS,  95   NASSAU  STREET. 
I    874- 


TO 

THE     HONORABLE     4 

DUDLEY    CAMPBELL. 

MY  DEAR  DUDLEY, 

As  you  have  chosen  the  noble  though  arduous  pro- 
fession of  the  Law,  I  dedicate  to  you.  the  LIVES  OF  THE 
CHIEF  JUSTICES,  in  the  hope  that  they  may  stimulate 
in  your  bosom  a  laudable  ambition  to  excel,  and  that 
they  may  teach  you  industry,  energy,  perseverance,  and 
self-denial.  Learn  that,  by  the  exercise  of  these  virtues, 
there  is  no  eminence  to  which  you  may  not  aspire, — and, 
from  the  examples  here  set  before  you,  ever  bear  in 
mind  that  truly  enviable  reputation  is  only  to  be  ac- 
qired  by  independence  of  character,  by  political  con- 
sistency, and  by  spotless  purity  both  in  public  and  pri- 
vate life. 

I  cannot  hope  to  see  you  enjoying  high  professional 
distinction ;  but,  when  I  am  gone,  you  may  rescue  my 
name  from  oblivion,  and,  if  I  should  be  forgotten  by 
all  the  world  besides,  you  will  tenderly  remember 

Your  ever  affectionate  Father. 

CAMPBELL. 


Tiii  PREFACE. 

LORS,  although  sometimes  insignificant  as  individuals,  were 
all  necessarily  mixed  up  with  the  political  struggles  and 
the  historical  events  of  the  times  in  which  they  flourished ; 
but  CHIEF  JUSTICES  occasionally  had  been  quite  obscure 
till  they  were  elevated  to  the  bench,  and  then,  confining 
themselves  to  the  routine  of  their  official  duties,  were 
known  only  to  have  decided  such  questions  as  "  whether 
beasts  of  the  plow  taken  in  vetito  namio  may  be  replevied?  " 
So  many  of  them  as  I  could  not  reasonably  hope  to  make 
entertaining  or  edifying,  I  have  used  the  freedom  to  pass 
over  entirely,  or  with  very  slight  notice.  But  the  high 
qualities  and  splendid  career  of  others  in  the  list  have  ex- 
cited in  me  the  warmest  admiration.  To  these  I  have 
devoted  myself  with  unabated  diligence ;  and  I  hope  that 
the  wearers  of  the  " Collar  of  S  S  "  *  may  be  deemed  fit 
companions  for  the  occupiers  of  the  "  Marble  Chair,"  who 
have  been  so  cordially  welcomed  by  the  Public. 

I  have  been  favored  with  a  considerable  body  of  new 
information  from  the  families  of  the  later  Chief  Justices, 
— of  Lord  Chief  Justice  Holt,  Lord  Chief  Justice  Lee,  and 
Lord  Chief  Justice  Ryder.  But  my  special  thanks  are 
due  to  my  friend  Lord  Murray,  Judge  of  the  Supreme 
Court  in  Scotland,  for  the  valuable  materials  with  which 
he  has  supplied  me  for  the  Life  of  his  illustrious  kinsman, 
Lord  Mansfield,  hitherto  so  strangely  neglected  or  misrep- 
resented. 

1  This  has  been  from  great  antiquity  the  decoration  of  the  Chief  Justices. 
Dugdale  says  it  is  derived  from  the  name  of  SAINT  SIMPLICIUS,  a  Christian 
Judge,  who  suffered  martyrdom  under  the  Emperor  Dioclesian, :  "  Gemmae 
vero  S  S  indicabant  Sancti  Simpiicii  nomen. ' — (Or.  Jur.  xxxv.) 


PREFACE.  Jx 

In  taking  farewell  of  the  Public,  I  beg  permission  to  return  my 
sincere  thanks  for  the  kindness  I  have  experienced  both  from 
friends  and  strangers  who  have  pointed  out  mistakes  and  sup- 
plied deficiencies  in  my  biographical  works, — and  earnestly  to 
solicit  a  continuance  of  similar  favors. 

Stratheden  House, 
Aug.  10,  1849. 


CONTENTS 

OF 

THE    FIRST    VOLUME. 

CHAPTER    I. 

LIVES  OF  THE  CHIEF  JUSTICES  FROM   THE  CONQUEST  TO  THB 
REIGN  OF  EDWARD   I. 

Origin  and  Functions  of  the  Office  of  Chief  Justiciar,  or  Chief  Justice,  of 
England,  Page  I.  ODO,  the  first  Chief  Justiciar,  4.  His  birth,  4.  He 
accompanies  William  the  Conqueror  in  the  Invasion  of  England,  4.  He 
is  appointed  Chief  Justiciar,  5.  Cause  tried  before  him,  6.  His  quarrel 
with  the  King,  7.  He  is  liberated  from  Imprisonment,  8.  He  conspires 
against  William  Rufus,  9.  He  is  banished  from  England,  10.  His  Death, 
10.  WILLIAM  FITZ-OSBORNE  Chief  Justiciar,  n.  WILLIAM  DE  WAR- 
RENNE  and  RICHARD  DE  BENEFACTA  Chief  Justiciars,  12.  WILLIAM  DE 
CARILEFO  Chief  Justiciar,  14.  FLAMBARD  Chief  Justiciar,  15.  First 
Sittings  in  Westminster  Hall,  15.  ROGER,  BISHOP  OF  SALISBURY  Chief 
Justiciar,  16.  RALPH  BASSET  Chief  Justiciar,  16.  PRINCE  HENRY  (af- 
terwards Henry  II.)  Chief  Justiciar,  17.  RICHARD  DE  Luci  Chief  Jus- 
ticiar, 17.  ROBERT  EARL  OF  LEICESTER,  Chief  Justiciar,  18.  RANULFUS 
DE  GLANVILLE,  19.  His  Birth,  19.  He  is  Sheriff  of  Yorkshire,  19.  He 
takes  William  the  Lion,  King  of  Scots,  Prisoner,  21.  How  the  News 
was  received  by  Henry  II.,  22.  Glanville  made  Chief  Justiciar,  23. 
Glanville  as  a  Law  Writer,  25.  Preface  to  Glanville's  Book,  25.  Mode 
of  Trial  by  Grand  Assize  or  by  Battle,  27.  Glanville's  Conduct  to  the 
Welsh,  30.  Glanville's  Prohibition  in  the  Suit  between  Henry  II.  and 
the  Monks  of  Canterbury,  31.  A  new  Crusade,  33.  Glanville  takes  the 
Cross,  33.  Glanville  is  killed  at  the  Siege  of  Acre,  35.  HUGH  PUSAR, 
BISHOP  OF  DURHAM,  Chief  Justiciar,  36.  His  licentious  youth,  36.  His 
meritorious  middle  age,  37.  His  seven  years  of  Blindness,  37.  His 
Death,  38.  WILLIAM  LONGCHAMP,  38.  WALTER  HUBERT,  ARCHBISHOP 
OF  CANTERBURY,  Chief  Justiciar,  38.  Case  of  William-with-the-Long- 
Beard,  39.  Hubert  deposed  from  the  Justiciarship,  41.  GEOFFREY  FITZ- 


CONTENTS. 

PETER  Chief  Justiciar,  42.  Trial  of  the  Case  of  Fauconbridge  v.  Fau- 
conbridge,  43.  PETER  DE  RUPIBUS,  44.  Peter  de  Rupibus  in  favor  with 
Henry  III.,  45.  He  takes  the  Cross,  46.  He  gains  a  Battle  for  the 
Pope,  47.  His  Death,  47.  HUBERT  DE  BURGH,  47.  Hubert  de  Burgh 
under  Richard  I.,  48.  His  Character  by  Shakspeare,  48.  Hubert  de 
Burgh  appointed  Chief  Justiciar  for  life,  49.  Hubert  removed  from  his 
office  of  Chief  Justiciar,  and  takes  to  Sanctuary,  52.  He  is  confined  in 
the  Tower  of  London,  53.  Death  of  Hubert  de  Burgh,  54.  STEPHEN 
DE  SEGRAVE,  56.  Obscure  Chief  Justiciars,  56.  HUGH  Eicon  Chief 
Justiciar,  56.  HUGH  LE  DESPENCER  Chief  Justiciar,  58.  Death  of  Hugh 
le  Despencer,  60.  PHILIP  BASSET  Chief  Justiciar,  60.  His  Death,  61. 
Whether  Simon  de  Montfort  was  ever  Chief  Justiciar?  62.  HENRY  DE 
BRACTON  Chief  Justiciar,  63.  Bracton's  Book,  "  De  Legibus  et  Consue- 
tudinibus  Anglise,"  64.  First  Chief  Justice  who  acted  merely  as  a  Judge, 
65.  Lord  Chief  Justice  BRUCE,  65.  Origin  of  the  Bruces,  66.  Scottish 
Branch  of  the  Bruces,  66.  Birth  of  the  Chief  Justice,  67.  He  is  edu- 
cated in  England,  67.  He  is  a  Puisne  Judge,  67.  He  is  taken  Prisoner 
in  the  Battle  of  Lewes,  68.  He  is  made  Chief  Justice,  68.  He  loses  the 
Office  on  the  Death  of  Henry  III.,  63.  He  returns  to  Scotland,  68.  He 
is  a  Commissioner  for  negotiating  the  Marriage  of  the  Maid  of  Norway 
with  the  Son  of  Edward  I.,  69.  On  her  death  he  claims  the  Crown  of 
Scotland,  69.  He  acknowledges  Edward  I.  as  Lord  Paramount  of 
Scotland,  70.  Decided  against  him,  70.  His  Death,  70.  His  Descend- 
ants, 70. 

CHAPTER     II. 

LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  ACCESSION  OF  EDWARD 
I.  TO  THE  APPOINTMENT  OF  CHIEF  JUSTICE  TRESIL1AN. 

Judicial  Institutions  of  Edward  I.,  71.  RALPH  DE  HENGHAM  Chief  Jus- 
tice of  the  Court  of  King's  Bench,  73.  His  Origin,  73.  His  Progress  in 
the  Law,  73.  Law  Books  composed  by  him,  73.  He  is  appointed  Guar- 
dian of  the  Kingdom,  75.  He  is  charged  with  Bribery,  76.  Convictions  of 
the  Judges,  76.  De  Hengham  is  fined  7000  Marks,  76.  Opinions  respect- 
ing him  in  after-times,  77.  He  is  restored  to  public  Employment,  77.  His 
Death,  77.  DE  WEYI.AND  Chief  Justice  of  the  Common  Pleas,  78.  His 
Conduct,  78.  He  absconds  in  Disgrace,  78.  His  Punishment  and  Infamy 
in  after-times,  78.  DE  THORNTON  Chief  Justice  of  King's  Bench,  79. 
ROGER  LE  BRABACON,  79.  He  is  employed  by  Edward  I.  in  the  Dispute 
about  the  Crown  of  Scotland,  80.  His  Address  to  the  Scottish  Parlia- 
ment, Si.  He  assists  in  subjecting  Scotland  to  English  Jurisdiction,  84. 
He  is  made  Chief  Justice  of  the  King's  Bench,  84.  His  Speech  at  the 
Opening  of  the  English  Parliament,  84.  His  Death,  85.  Sir  William 
Howard,  qu.  whether  a  Chief  Justice?  85.  HENRY  LE  SCROPE.  86.  Sum- 


CONTENTS.  xv 

moned  to  the  House  of  Lords,  86.  Chief  Justice  of  the  King's  Bench, 
87.  HENRY  DE  STAUNTON  Chief  Justice  of  the  King's  Bench,  87.  Bal- 
lad on  Chief  Justice  Staunton,  89.  SIR  ROBERT  PARNYNG,  90.  SIR 
WILLIAM  DE  THORPE,  90.  His  professional  Progress,  90.  He  is  made 
Chief  Justice  of  the  Court  of  King's  Bench,  90.  His  Addresses  to  the 
two  Houses  of  Parliament,  90.  He  is  charged  with  Bribery,  92.  He  is 
found  guilty :  qu.  whether  he  was  sentenced  to  death?  93.  SIR  WILLIAM 
SHARESHALL  Chief  Justice  of  the  King's  Bench,  93.  His  Address  to 
both  Houses  of  Parliament,  93.  SIR  HENRY  GREEN,  95.  SIR  JOHN 
KNYVET,  95.  SIR  JOHN  DE  CAVENDISH,  95.  His  Origin,  95.  He  is 
made  Chief  Justice  of  the  King's  Bench,  96.  He  is  put  to  death  in  Wat 
Tyler's  Rebellion,  96.  His  Descendants,  97. 

CHAPTER    III. 
CHIEF  JUSTICES  TILL  THE  DEATH  OF  SIR  WILLIAM  GASCO1GNE. 

SIR  ROBERT  TRESILIAN,  98.  He  is  made  a  Puisne  Judge  of  the  Common 
Pleas,  98.  Chief  Justice  of  the  King's  Bench,  99.  His  Plan  to  enable 
Richard  II.  to  triumph  over  the  Batons,  100.  The  Opinion  of  the  Judges 
on  the  Privileges  of  Parliament,  loo.  Measures  prompted  by  Tresilian 
against  the  Barons,  102.  The  Barons  gain  the  Ascendancy,  104.  Tre- 
silian prosecuted  for  High  Treason,  104.  He  absconds,  104.  Proceed- 
ings in  Parliament,  105.  Tresilian  attainted,  105.  He  comes  to  West- 
minster in  Disguise,  106.  He  is  discovered,  apprehended,  and  executed, 
in.  His  Character,  in.  SIR  ROBERT  BELKNAPPE,  in.  His  Family, 
112.  He  is  made  Chief  Justice  of  the  Common  Pleas,  112.  The  Man- 
ner in  which  he  was  coerced  into  the  giving  of  an  illegal  Opinion,  113. 
He  is  arrested  and  convicted  of  High  Treason,  113.  Judges  attainted 
of  High  Treason,  114.  The  Sentence  commuted  for  Transportation  to 
Ireland,  116.  He  is  allowed  to  return  to  England,  116.  His  Death, 
116.  SIR  WILLIAM  THIRNYNGE,  117.  Chief  Justice  of  the  Common 
Pleas,  117.  Justification  of  the  part  he  took  in  the  Deposition  of  Rich- 
ard II.,  118.  He  is  appointed  to  carry  to  Richard  II.  the  Renunciation 
of  the  Allegiance  of  the  Nation,  119.  The  account  of  the  Manner  in 
which  he  executed  this  Commission,  119.  He  acts  as  Chief  Justice  under 
Henry  IV.,  123.  His  Death,  124.  SIR  WILLIAM  GASCOIGNE,  124.  His 
Origin  and  Education,  125.  His  Success  at  the  Bar,  125.  He  is  appointed 
Attorney  to  represent  Bolingbroke,  afterwards  Henry  III.,  125.  His  Pro- 
ceedings in  tliis  capacity  on  the  Death  of  John  of  Gaunt,  126.  He  is  ap- 
pointed Chief  Justice  of  the  King's  Bench,  127.  His  Refusal  to  try  a 
Prelate  and  a  Peer,  128.  Story  of  his  committing  the  Prince  of  Wales 
to  Prison  ;  qu.  whether  it  be  authentic  ?  129.  When  and  where  first  men- 
tioned, 130.  Story  as  related  by  Sir  Thomas  Eiyot,  130.  Represented 


xvi  CONTENTS. 

on  the  Stage,  133.  Hovr  the  Story  is  treated  by  Shakspeare,  134.  Ref. 
utation  of  the  Claims  of  other  Judges,  136.  Merit  of  Sir  W.  Gascoigne 
in  this  Transaction,  137.  Sir  William  Gascoigne's  Law  Reforms,  138 
Curious  Case  in  which  he  acted  as  an  Arbitrator,  139.  Refutation  of  the 
Assertion  that  he  died  in  the  Reign  of  Henry  IV.,  139.  His  Will,  140. 
His  Tomb  and  Epitaph,  141. 

CHAPTER    IV. 

CHIEF  JUSTICES  TILL  THE  APPOINTMENT  OF  CHIEF  JUSTICE  FITZ- 
JAMES  BY  KING  HENRY  VIII. 

SIR  WILLIAM  HANKFORD,  143.  His  Ingenious  Suicide,  144.  His  Monu- 
ment and  Epitaph,  144.  Obscure  Chief  Justices  passed  over,  144.  SIR 
JOHN  FORTESCUE,  145.  SIR  JOHN  MARKHAM,  145.  His  Professional 
Progress,  146.  He  is  a  Puisne  Judge,  146.  He  is  appointed  Chief  Jus- 
tice of  the  King's  Bench,  146.  His  Conduct  on  the  Trial  of  Sir  Thomas 
Cooke,  147.  He  is  dismissed  from  his  Office,  148.  His  Death,  148.  His 
Character,  148.  SIR  THOMAS  BILLING,  149.  His  obscure  Origin,  149. 
He  starts  as  a  Lancastrian,  150.  He  is  made  King's  Sergeant,  150.  He 
goes  over  to  the  Yorkists,  151.  He  is  made  a  Puisne  Judge,  151.  Trials 
for  Treason  before  him,  151.  He  is  made  Chief  Justice  of  the  King's 
Bench,  153.  Trial  of  Rex  v.  Burdet,  153.  Billing  again  a  Lancastrian, 
155.  Billing  again  a  Yorkist,  156.  His  Conduct  on  the  Trial  of  the 
Duke  of  Clarence,  157.  His  Death,  158.  SIR  JOHN  HUSSEY,  159.  His 
legal  Studies,  159.  He  is  made  Attorney  General,  159.  He  is  made  Chief 
Justice  of  the  King's  Bench,  159.  His  Submission  to  Richard  III.,  160. 
He  is  continued  in  his  office  by  Henry  VIL,  161.  His  Death,  162.  SIR 
JOHN  FlNEUX,  163.  Tripartite  Division  of  His  Life,  163. 

CHAPTER    V. 

CHIEF  JUSTICES  TILL  THE  APPOINTMENT  OF  CHIEF  JUSTICE  POP- 
HAM  BY  QUEEN  ELIZABETH. 

SIR  JOHN  FITZJAMES,  164.  His  early  intimacy  with  Cardinal  Wolsey,  164. 
He  is  made  Attorney  General,  165.  He  conducts  the  Prosecution  against 
the  Duke  of  Buckingham,  165.  He  is  made  a  Puisne  Judge,  165.  Chief 
Justice  of  the  King's  Bench,  165.  His  base  Conduct  on  the  Fall  of 
Wolsey,  166.  Fitzjames  assists  in  drawing  up  the  Articles  of  Accusation 
against  Wolsey,  167.  Eitzjames  condemns  to  death  Protestants  and 
Catholics,  169.  Trial  of  Bishop  Fisher,  169.  Trial  of  Sir  Thomas 
More,  171.  Trial  of  Anne  Boleyn  and  her  supposed  Gallants,  172. 
Death  of  Fitzjames,  173.  SIR  EDWARD  MONTAGU,  174.  His  Family, 
174.  His  professional  Progress,  174.  He  is  returned  to  the  House  of 
Commons :  how  a  Leader  of  Opposition  was  dealt  with  by  Henry  VIII., 


CONTENTS.  xvii 

175.  Grand  Feast  when  Montagu  was  called  Sergeant,  175.  He  is  made 
Chief  Justice  of  the  King's  Bench,  176.  Pleasures  and  Discomforts  ex- 
perienced by  him,  176.  Gives  an  Opinion  on  the  Invalidity  of  the  King's 
Marriage  with  Anne  of  Cleves,  177.  His  Opinion  on  the  Proofs  against 
Catherine  Howard,  177.  He  exchanges  his  Office  for  the  Chief  Justice- 
ship of  the  Common  Pleas,  178.  His  Conduct  on  the  Trial  of  the  Duke 
of  Norfolk,  179.  He  is  employed  to  make  the  Will  of  Edward  VI.  in 
favor  of  Lady  Jane  Grey,  181.  He  loses  his  Office  on  the  Accession  of 
Queen  Mary,  182.  His  Death,  182.  The  Five  Obscure  Justices  of  the 
King's  Bench,  182.  SIR  JAMES  DYER,  Lord  Chief  Justice  of  the  Com- 
mon Pleas,  183.  Latin  Verses  in  his  Praise,  183.  His  Origin  and  Edu- 
cation, 183.  His  early  Genius  for  Reporting,  184.  His  Merits  as  a  Re- 
porter, 184.  He  is  Speaker  of  the  House  of  Commons,  185.  He  is  made 
Queen's  Sergeant,  185.  He  conducts  the  Prosecution  against  Sir  Nicholas 
Throckmorton,  1 86.  He  is  made  a  Puisne  Judge,  188.  Chief  Justice  of 
Common  Pleas,  188.  His  Reports,  189.  Case  on  the  Marriage  of  Minors, 
190.  Case  on  the  Benefit  of  Clergy,  191.  Cases  on  the  Law  of  Villein- 
age, 191.  Conduct  on  the  Trial  of  the  Duke  of  Norfolk,  194.  Charge 
against  him  for  arbitrary  Conduct  as  Judge  of  Assize,  195.  His  Death, 
196.  Publication  of  Reports,  197.  Sad  Fate  of  the  Last  of  his  House, 
198.  SIR  ROBERT  CATLYNE  Chief  Justice  of  the  King's  Bench,  198. 
His  Descent  from  Cataline  the  Conspirator,  198.  Feast  when  he  was 
called  Sergeant,  199.  He  is  made  a  Puisne  Judge,  200.  Chief  Justice, 
200.  He  assists  at  the  Trial  of  the  Duke  of  Norfolk,  201.  Qu.  whether 
the  fact  of  a  Witness  being  a  Scot  renders  him  incompetent,  or  only  goes 
to  his  credit?  201.  Chief  Justice  Catlyne  passes  Sentence  on  Hickford, 
203.  His  Death  and  Burial,  205.  His  Descendants,  205.  SIR  CHRIS- 
TOPHER WRAY,  205.  His  Doubtful  Parentage,  206.  He  is  a  Sergeant- 
at-Law,  206.  He  is  Speaker  of  the  House  of  Commons,  206.  He  is 
made  Chief  Justice  of  the  King's  Bench,  208.  He  tries  Campion  the 
Jesuit,  208.  Trial  of  William  Parry  for  Treason,  210.  Wray  presides 
in  the  Star  Chamber  on  the  Trial  of  Secretary  Davison,  211.  Trial  of 
the  Earl  of  Arundel,  213.  Death  of  Chief  Justice  Wray,  213.  His 
Character,  213. 

CHAPTER    VI, 

CHIEF  JUSTICES  FROM  THE  DEATH  OF  SIR  CHRISTOPHER  WRAY 
TILL  THE  APPOINTMENT  OF  SIR  EDWARD  COKE  BY  JAMES  I. 

SIR  JOHN  POPHAM,  214.  His  Birth,  214.  At  Oxford,  215.  His  Profligacy 
when  a  Student  in  the  Temple,  215.  He  takes  to  the  Road,  215.  He 
reforms,  216.  His  professional  Progress,  217.  He  is  made  Solicitor 
General,  and  Speaker  of  the  House  of  Commons,  218.  His  Address  to 
the  Queen  at  the  end  of  the  Session,  219.  He  becomes  Attorney  Gen- 
eral, 219.  Proceeding  ia  the  Star  Chamber  on  the  Death  of  the  Earl  of 


xviii  CONTENTS. 

Northumberland,  220.  Tilney's  Case,  221.  He  prosecutes  Secretary 
Davison  for  sending  off  the  Warrant  for  the  Execution  of  Queen  Mary. 
222.  Popham  is  made  Chief  Justice  of  the  King's  Bench,  224.  His 
gallant  Conduct  in  Essex's  Rebellion,  225.  Essex's  Trial,  225.  Trial  of 
Essex's  Accomplices,  226.  Sir  Walter  Raleigll  tried  before  Popham,  227. 
Practice  of  Putting  Questions  to  the  Prisoner  in  Criminal  Trials,  228. 
Gunpowder  Plot,  230.  Trial  of  Garnet,  Superior  of  the  Jesuits,  231. 
Death  of  Popham,  232.  Legend  respecting  the  Manner  in  which  he  ac- 
quired the  Manor  of  Littiecote,  236.  His  Reports,  235.  His  Fortune, 

235.  SIR  THOMAS  FLEMING,  the  Rival  of  Bacon,  236.     His  Laborious- 
ness,  236.     He  is  made  Solicitor  General  in  preference  to  Lord  Bacon, 

236.  He  breaks  down  in  the  House  of  Commons.  238.     He  refuses  to 
resign  the  Office  of  Solicitor  General  in  favor  of  Bacon,  139.   He  is  made 
Chief  Baron  of  the  Exchequer  by  James  I.,  139.     "The  Great  Case  of 
Imposition,"  239.    Fleming  appointed  Chief  Justice  of  the  King's  Bench, 
242.     His  Judgment  in  the  Case  of  the  Postnati,  242.     Prosecution  of 
the  Countess  of  Shrewsbuiy,  243.    Death  of  Chief  Justice  Fleming,  243. 

C  HAPTER    VII. 

LIFE  OF  LORD  CHIEF  JUSTICE  SIR  EDWARD  COKE,  FROM  HIS  BIRTH 

TILL  HE  WAS  MADE  CHIEF  JUSTICE  OF  THE  COURT 

OF  COMMON  PLEAS. 

Merits  of  SIR  EDWARD  COKE,  245.  His  Family,  246.  His  Birth,  246.  At 
School,  247.  At  the  University,  247.  A  Student  of  Law,  248.  He  is 
called  to  the  Bar,  249.  His  first  Brief,  249.  He  is  Counsel  in  "  Shelly's 
Case,"  251.  His  great  Success  and  professional  Profits,  251.  His  first 
Marriage,  252.  He  is  appointed  Recorder  of  Coventry,  &c.,  252.  He  is 
made  Solicitor  General,  253.  He  is  elected  Speaker  of  the  House  of 
Commons,  254.  His  Conduct  as  Speaker,  254.  His  Address  to  the  Queen 
on  the  Dissolution  of  Parliament,  254.  Rivalry  between  Coke  and  Bacon 
for  the  office  of  Attorney  General,  257.  Coke  is  preferred,  257.  He  ex- 
amines State  Prisoners  and  superintends  the  Infliction  of  Torture,  257. 
His  brutal  Behavior  on  the  Trial  of  the  Earl  of  Essex,  258.  Coke  in 
Private  Life,  259.  Death  of  his  first  Wife,  259.  His  Courtship  of  Lady 
Hatton,  260.  He  breaks  a  Canon  of  the  Church,  261.  He  is  prosecuted 
in  the  Ecclesiastical  Court,  262.  His  Quarrels  with  his  second  Wife,  262. 
Accession  of  James  I.,  263.  Coke  is  knighted,  263.  Plis  insulting  lan- 
guage to  Sir  Raleigh,  264.  Logomachy  between  Coke  and  Bacon,  266. 
Bacon's  Letter  of  Remonstrance  to  Coke,  267.  Coke  conducts  the  Pros- 
ecution of  Guy  Fawkes,  268.  Trial  of  Garnet  the  Jesuit,  270.  Coke 
made  Chief  Justice  of  the  Common  Pleas,  272. 


CONTENTS.  xix 


CHAPTER    VIII. 

CONTINUATION   OF  THE    LIFE   OF  SIR  EDWARD  COKE,  T  LL  HB 

WAS  DISMISSED  FROM  THE  OFFICE  OF  CHIEF  JUSTICE 

OF  THE  COURT  OF  KING'S  BENCH. 

His  Meritorious  Conduct  as  a  Judge,  275.  Part  taken  by  him  in  the  Case 
of  the  Postnati,  276.  He  opposes  the  Court  of  High  Commission,  277. 
He  resists  the  Claim  of  the  King  to  sit  and  try  Causes,  278.  He  checks 
the  arbitrary  Proceedings  of  other  Courts,  280.  He  denies  the  power  of 
the  Crown  to  alter  the  Law  by  "Proclamation,"  281.  Coke  against  his 
will  is  made  Chief  Justice  of  the  King's  Bench,  283.  He  gives  a  qualified 
Support  to  "Benevolences,"  285.  His  laudable  Conduct  in  Peacham's 
Case,  285.  He  exerts  himself  to  bring  to  justice  the  Murderers  of  Sir 
Thomas .  Overbury,  287.  Bacon  afraid  that  Coke  would  be  made  Lord 
Chancellor,  289.  Coke's  Dispute  with  Lord  Ellesmere  about  Injunctions, 
290.  Coke  incurs  the  King's  high  Displeasure  in  the  Case  of  Com- 
mendams,  290.  He  stops  a  Job  of  the  Duke  of  Buckinghom,  294.  Coke 
is  summoned  before  the  Privy  Council :  frivolous  Charges  against  him, 
296.  He  is  suspended  from  his  office  of  Chief  Justice,  296.  Alleged 
Errors  in  his  Reports,  296.  Proceedings  against  Coke  before  the  Privy 
Council,  299.  Coke  is  dismissed  from  his  office  of  Chief  Justice  of  the 
King's  Bench,  300.  He  sheds  tears  on  his  Dismissal,  301.  He  soon  rallies, 
and  behaves  with  Firmness,  301. 

CHAPTER    IX. 

CONTINUATION    OF  THE   LIFE  OF   SIR   EDWARD  COKE,  TILL   HE 
WAS  SENT   PRISONER  TO  THE  TOWER. 

Coke's  Conduct  after  his  Disgrace,  303.  His  Plan  to  circumvent  Bacon  by 
marrying  his  Daughter  to  Sir  John  Villiers,  304.  Resentment  of  Lady 
Hatton,  who  carries  off  and  conceals  their  Daughter,  305.  Coke's  March 
at  the  Head  of  an  armed  Band  of  Men  to  rescue  his  Daughter,  306.  He 
succeeds,  306.  Bacon's  indiscreet  effort  to  break  off  the  Match,  307. 
Coke  is  prosecuted  in  the  Star  Chamber  for  carrying  off  his  Daughter, 
308.  Lady  Hatton  confined  and  prosecuted  for  her  part  in  this  affair, 
308.  Bacon  in  danger  of  being  dismissed  from  his  office  of  Chancellor, 
supports  the  Match,  309.  Letter  of  the  Lady  Frances  Coke  to  her 
Mother,  310.  The  Wedding,  311.  Lady  Hatton  restored  to  Liberty  and 
to  Favor  at  Court,  311.  Coke  attends  to  the  judicial  business  of  the 
Privy  Council,  312.  He  sits  in  the  Star  Chamber,  312.  Coke  a  Lord 
Commissioner  of  the  Treasury,  313.  A  new  Parliament  to  be  called,  314. 
Coke  is  returned  fur  Liskeanl,  315.  His  treatment  of  the  Presentation 


xx  CONTENTS. 

Copy  of  Bacon's  Novura  Organum,  315.  Coke  disappointed  in  not  being 
made  Lord  Treasurer,  316.  He  completes  his  "  Reports,"  and  proceeds 
with  his  Commentary  on  Littleton,  316.  Parliament  meets,  316.  Coke 
prompts  and  conducts  the  Proceedings  which  led  to  the  Downfall  of 
Bacon,  317.  His  Rebuke  to  a  member  of  the  House  of  Commons  who 
scofted  at  the  Observance  of  the  Sabbath  Day,  318.  He  exposes  the 
Abuse  of  Monopolies,  319.  Charges  against  Bacon  for  taking  Bribes, 
320.  Coke  procures  the  Impeachment  of  Bacon,  320.  Sentence  against 
Bacon,  320.  Coke  exasperated  by  the  Appointment  of  Williams  as  Lord 
Keeper,  321.  Struggle  respecting  the  King's  Power  to  order  the  two 
Houses  to  adjourn,  321.  Lord  Coke  a  "  Free  Trader,"  322.  He  de- 
fends Archbishop  Abbott  from  the  Charge  of  Manslaughter,  322.  Coke 
Leader  of  the  Opposition  in  the  House  of  Commons,  323.  The  King 
forbids  the  House  of  Commons  to  discuss  Matters  of  State,  and  denies 
their  Privileges,  324.  Coke's  Vindication  of  the  Privileges  of  the  House, 

325.  He  moves  a  "Protestation,"  which  is  agreed  to  and  entered  in  the 
Journals,  325.    The  King  tears  the  "Protestation  "  from  the  Journals, 

326.  Parliament  dissolved,  326. 

CHAPTER    X. 
CONCLUSION  OF  THE  LIFE  OF  SIR  EDWARD  COKE. 

Coke  committed  to  the  Tower,  327.  He  employs  himself  on  "  Co.  Litt," 
328.  He  is  released  on  the  Intercession  of  the  Prince  of  Wales,  328. 
Coke  defeats  an  Attempt  to  banish  him  to  Ireland,  329.  Coke  for  a  short 
time  reconciled  to  Buckingham,  329.  Coke  conducts  the  Impeachment 
of  the  Earl  of  Middlesex,  330.  Accession  of  Charles  I.,  331.  Coke's 
Moderation,  331.  His  Motion  for  an  Inquiry  into  the  Expenditure  of  the 
Crown,  331.  Abrupt  Dissolution  of  Parliament,  332.  Expedient  to  ex- 
clude Coke  from  the  new  Parliament  by  making  him  a  Sheriff,  332.  He 
is  returned  for  Norfolk,  332.  Qu.  whether  he  was  disqualified  by  reason, 
of  his  being  a  Sheriff?  333.  Coke  serves  the  office  of  Sheriff  with  great 
distinction,  333.  Arbitrary  Measures  of  the  Government,  334.  Coke 
Member  for  Buckinghamshire  in  a  new  Parliament,  334.  The  King  tries 
to  intimidate  the  Parliament,  334.  Coke's  Defense  of  Public  Liberty, 
335.  Coke's  patriotic  Regard  for  the  Glory  of  England,  336.  Coke 
brings  forward  the  Petition  of  Right,  337.  Proviso  introduced  in  the 
House  of  Lords  to  save  the  "  Sovereign  Power  of  the  Crown,"  338.  On 
the  recommendation  of  Coke  this  is  rejected  by  the  Commons,  339.  The 
King's  Attempt  to  return  an  evasive  Answer,  340.  Coke's  Denunciation. 
of  the  Duke  of  Buckingham,  340.  The  Petition  of  Right  receives  the 
Royal  Assent  in  due  form,  341.  Bill  for  Supply  passes,  which  Coke  car- 
ries up  to  the  House  of  Lords,  341.  Sudden  Prorogation,  342.  Coke 


CONTENTS.  xxl 

absent  from  the  short  stormy  Session  of  1629, 342.  He  retires  from  Public 
Life,  343.  His  Occupations,  343.  His  Dislike  to  Physic,  343.  Attempt 
of  his  Friends  to  give  him  the  Benefit  of  Medical  Advice,  344.  He  meets 
with  an  Accident,  344.  Prosecution  for  a  Libel  upon  him,  345.  Coke 
supposed  to  have  advised  Hampden  to  resist  Ship-Money,  345.  His 
Papers  seized  by  the  Secretary  of  State  when  he  was  on  his  Death-bed, 
346.  His  Death,  346.  His  Funeral,  346.  His  Epitaph,  347.  His  Ig- 
norance of  Science,  and  his  Contempt  for  Literature,  347.  His  solitary 
Joke,  348.  His  Greatness  as  a  Lawyer  and  a  Judge,  348.  Coke  as  an 
Author,  349.  His  Reports,  349.  "  Coke  upon  Littleton,"  350.  Second, 
Third  and  Fourth  Institutes,  351.  His  passionate  Love  of  his  Profession, 
352.  The  Distribution  of  his  Time,  353.  His  Style  of  Living,  353.  His 
Habits  and  Manners,  353.  Contemporary  Testimonies  in  his  Favor,  355. 
He  is  unjustly  censured  by  Hallam,  355.  Whether  would  you  have  been 
Coke  or  Bacon  ?  355.  Part  taken  by  Lady  Hatton  in  the  Civil  War,  356. 
Coke's  Descendants,  357. 


CHANCERY    I.ANE,    THE    TEMl'l.E,    <iC. 
(From  an  old  Map  of  London.) 


LIVES 

OF  THB 

CHIEF  JUSTICES  OF  ENGLAND. 

CHAPTER    I. 

LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  CONQUEST 
TO   THE   REIGN   OF   EDWARD   I. 

THE  office  of  CHIEF  JUSTICE,  or  CHIEF  JUSTICIAR, 
was  introduced  into  England  by  William  the  Con- 
queror from  Normandy,  where  it  had  long  ex- 
isted.1 The  functions  of  such  an  officer  would  have  ill 
accorded  with  the  notions  of  our  Anglo-Saxon  ancestors, 
who  had  a  great  antipathy  to  centralization,  and  prided 
themselves  upon  enjoying  the  rights  and  the  advantages 
of  self-government.  The  shires  being  parceled  into  hun- 
dreds, and  other  subdivisions,  each  of  these  had  a  court, 
in  which  suits,  both  civil  and  criminal,  might  be  com- 
menced. A  more  extensive  jurisdiction  was  exercised 
by  the  County  Court,  a  tribunal  of  high  dignity,  over 
which  the  Bishop,  and  the  Earl,  or  Alderman,  presided 
jointly.  Cases  of  importance  and  difficulty  were  occa- 
sionally brought  by  appeal  before  the  Witenagemote, 

1  Of  the  two  names  "Justice  "  and  "  Justiciar,"  we  have  this  account  by 
Spelman  :  "  Justitia  al.  Justitiarius.  Prior  vox  in  juris  nostri  formulis,  so- 
lummodo  videtur  usitata,  usque  ad  aetatem  Henrici  3.  altera  jam  se  efferente, 
hsec  paulatim  disparuit :  sed  inde  hodie  in  vernaculo  et  juris  annalibus  Gal- 
lico-Normancis  '  a  '  vel  '  un  Justice  '  dicimus,  non  '  Justicer.'  "  In  Scot- 
land, where  this  office  was  introduced,  along  with  almost  every  other  which 
existed  in  England  under  the  Norman  kings,  the  word  Justitiarius  pre- 
vailed, and  hence  we  now  have  the  "  Court  of  JUSTICIARY."  See  "  Lives  of 
the  Chancellors,"  vol.  i.  p.  5. 
I.— I 


a       REIGN  OF  WILLIAM  THE  CONQUEROR. 

and  here  they  were  disposed  of  by  the  voice  of  the  ma- 
jority of  those  who  constituted  this  assembly.  We  do 
find,  in  the  Anglo-Saxon  records,  a  notice  of  "  Totius 
Angliae  Aldermannus,"  but  such  a  creation  seems  to 
have  taken  place  only  on  rare  emergencies,  and  we  Jiave 
no  certain  account  of  the  duties  intrusted  to  the  person 
so  designated.1  In  Normandy  the  interference  of  the 
supreme  government  was  much  more  active  than  in  Eng- 
land, and  there  existed  an  officer  called  CHIEF  JUSTIO 
IAR,  who  superintended  the  administration  of  justice 
over  the  whole  dukedom,  and  on  whom,  according  to  the 
manners  of  the  age,  both  military  and  civil  powers  of 
great  magnitude  were  conferred." 

Before  William  had  entirely  completed  his  subjugation 
of  England,  eager  to  introduce  into  it  the  laws  and  insti- 
tutions of  his  own  country,  so  favorable  to  princely  pre- 
rogative,— while  he  separated  the  civil  and  ecclesiastical 
jurisdiction,  and  confined  the  County  Court  (from  which 
the  Bishop  was  banished)  to  the  cognizance  of  petty  suits, 
— preparatory  to  the  establishment  of  the  feudal  system 
in  its  utmost  rigor,  he  constituted  the  office  of  CHIEF  Jus- 
TICIAR.  His  plan  was  to  have  a  grand  central  tribunal 
for  the  whole  realm,  which  should  not  only  be  a  court  of 
appeal,  but  in  which  all  causes  of  importance  should 
originate  and  be'  finally  decided.  This  was  afterwards 
called  CURIA  REGIS,  and  sometimes  AULA  REGIS,  be- 
cause it  assembled  in  the  hall  of  the  King's  palace.  The 
great  officers  of  state,  the  Constable,  the  Mareschal,  the 
Seneschal,  the  Chamberlain,  and  the  Treasurer,  were  the 
judges,  and  over  them  presided  the  Grand  Justiciar. 
"  Next  to  the  King  himself,  he  was  chief  in  power  and 

1  Dugd.  Or.  Jur.  ch.  vii.  Mad.  Ex.  ch.  i.  Spel.  Gloss.  "  Justitia."  Coke's 
2nd  Inst.  ch.  vii. 

1  It  is  curious  to  observe  that,  notwithstanding  the  sweeping  changes  of 
laws  and  institutions  introduced  at  the  Conquest,  the  characteristic  differ- 
cnces  between  Englishmen  and  Frenchmen,  in  the  management  of  local  af- 
fairs, still  exists  after  the  lapse  of  so  many  centuries  ;  and  that  while  with  us 
parish  vestries,  town  councils,  and  county  sessions,  are  the  organs  of  the 
petty  confederated  republics  into  which  England  is  parceled  out,  in  France, 
whether  the  form  of  government  be  nominally  monarchical  or  republican, 
no  one  can  alter  the  direction  of  a  road,  build  a  bridge,  or  open  a  mine, 
without  the  authority  of  the  "  Ministre  des  Fonts  et  Chaussees."  In  Ire- 
land, there  being  much  more  Celtic  than  Anglo-Saxon  blood,  no  self-reli- 
ance is  felt,  and  a  disposition  prevails  to  throw  everything  upon  the  govern- 
ncnt. 


OFFICE    OF    CHIEF    JUSTICIAR.  3 

authority,  and  when  the  King  was  beyond  seas  (which 
frequently  happened)  he  governed  the  realm  like  a  vice 
roy."1  He  was  at  all  times  the  guardian  of  the  public 
peace  as  Coroner-General,1  and  he  likewise  had  a  control 
over  the  finances  of  the  kingdom.8  •  In  rank  he  had  pre- 
cedence over  all  the  nobility,  and  his  power  was  greater 
than  that  of  alJ  other  magistrates.* 

The  administration  of  justice  continued  nearly  on  the 
same  footing  for  eight  reigns,  extending  over  rather 
more  than  two  centuries.  Although,  during  the  whole 
of  this  period,  the  AULA  REGIS  was  preserved,  yet,  for 
convenience,  causes,  according  to  their  different  natures, 
were  gradually  assigned  to  different  committees  of  it, — 
to  which  may  be  traced  the  Court  of  King's  Bench,  the 
Court  of  Common  Pleas,  the  Court  of  Exchequer,  and 
the  Court  of  Chancery.  A  distinct  tribunal  for  civil 
actions  was  rendered  necessary,  and  was  fixed  at  West- 
minster by  the  enactment  of  MAGNA  CHARTA — "  Com- 
munia  placita  non  sequantur  curiam  nostram,  sed 
teneantur  in  aliquo  certo  loco ; "  but  the  suitors  in 
other  causes  were  long  after  obliged  to  resort  alter- 
nately to  York,  Winchester,  Gloucester,  and  other  towns, 
in  which  the  King  sojourned  at  different  seasons  of  the 
year.*  At  last  a  great  legislator  modeled  our  judicial 
institutions  almost  exactly  in  the  fashion  in  which,  after 
a  lapse  of  six  centuries,  they  present  themselves  to  us  at 
the  present  day,  showing  a  fixity  unexampled  in  the 
history  of  any  other  nation. 

The  Chief  Justiciar  was  then  considerably  lowered  in 
rank  ancJ  power,  but  the  identity  of  the  office  is  to  be 
distinctly  traced,  and  therefore  it  will  be  proper  that  I 

1  Madd.  Exch.  xi.,  where  it  is  said  "he  was  wont  to  be  styled  Justicia  Re- 
gis, Justiciarius  Regis,  and  absolutely  Justicia  or  Justiciarius  ;  afterwards 
he  was  sometimes  styled  Justiciarius  Regis  Anglia,  probably  to  distinguish 
him  from  the  King's  Justiciar  of  Ireland,  Normandy,"  &c. 

*The  Chief  Justice  of  the  King's  Bench  is  still  Chief  Coroner  of  England. 

3  It  is  supposed  to  be  a  remnant  of  this  power,  that,  upon  the  sudden 
death  or  resignation  of  the  Chancellor  of  the  Exchequer,  the  Chief  Justice 
of  the  King's  Bench  does  the  formal  duties  of  the  office  till  a  successor  is 
appointed. 

4"  Dignitate  omnes  regni  proceres,  potestate  omnes  superabat  magistra- 
tus." — Spel.  Gloss,  p.  331. 

5  The  Court  of  King's  Bench  is  still  supposed  to  be  ambulatory,  and  by 
original  writs  the  King  orders  the  defendant  to  appear  on  a  day  named, 
"wheresoever  we  shall  then  be  in  England." 


4  REIGN  OF  WILLIAAf  THE  CONQUEROR.  [1066. 

should  introduce  to  the  reader  some  of  the  individuals 
who  filled  it  in  its  greatest  splendor. 

The  first  Chief  Justiciar  of  England  was  ODO.  The 
beautiful  Arlotta,  the  tanner's  daughter  of  Falaise,  who, 
standing  at  her  father's  door,  had  captivated  Robert, 
Duke  of  Normandy, — after  living  with  him  as  his  mis- 
tress, bringing  him  a  son,  the  founder  of  the  royal  line  of 
England,  lamenting  his  departure  for  the  Holy  Land, 
and  weeping  for  his  death, — was  married  to  Herluin,  a 
Norman  knight,  by  whom  she  had  three  children.  Odo, 
the  second  of  these,1  possessing  bright  parts  and  an  ath- 
letic frame,  was  bred  both  to  letters  and  to  arms,  and, 
while  he  took  holy  orders,  he  still  distinguished  himself 
in  all  knightly  achievements.  He  was  a  special  favorite 
with  his  brother  the  young  Duke,  who  made  him  at  an 
early  age  Bishop  of  Bayeux.  Nevertheless  he  still  con- 
tinued to  assist  in  the  military  enterprises  by  which 
William  extended  and  consolidated  his  continental  do- 
minions, and  attracted  warriors  from  all  the  surrounding 
states  to  flock  to  his  standard. 

When,  on  the  death  of  Edward  the  Confessor,  the 
Duke  of  Normandy  claimed  the  crown  of  England,  and 
prep-ived  to  wrest  it  from  the  perjured  Harold,  Odo 
preached  the  crusade  in  the  pulpit,  and  zealously  ex- 
erted himself  in  levying  and  training  the  troops.  From 
Bayeux  he  carried  a  chosen  band  of  men-at-arms  in  ten 
ships,  with  which  he  joined  the  main  fleet  at  a  short  dis- 
tance from  St.  Valery.  He  was  one  of  the  first  to  jump 
ashore  at  Pevensey,  and  he  continued  to  ply  his  double 
trade  of  a  priest  and  a  soldier.  At  daybreak  of  the 
ever-memorable  i$th  of  October,  1066,  he  celebrated 
mass  in  the  Norman  camp,  wearing  a  coat  of  mail  under 
his  rochet.  He  then  mounted  a  gallant  white  charger, 
carried  a  marshal's  baton  in  his  hand,  and  drew  up  the 
cavalry,  with  the  command  of  which  he  was  intrusted. 
In  the  fight  he  performed  prodigies  of  valor,  and  he 
mainly  contributed  to  the  victory  which  had  such  an  in- 
fluence on  the  destinies  of  England  and  of  France.  The 
famous  Bayeux  tapestry  represents  him  on  horseback, 

1  The  eldest  was  Robert,  Earl  of  Mortaigne  ;  and  the  youngest  a  daugh- 
ter, Countess  of  Albemarle.  Will.  Gem.  vii.  3  ;  viii.  37.  Pict.  153,  211. 
Ordcric.  255. 


1067.]  ODO.  5 

and  in  complete  armor,  but  without  any  sword,  and 
bearing  a  staff  only  in  his  hand,  with  the  superscription 
"  Hie  Odo  Epis.  baculem  tenens  comfortat,"  as  if  he  had 
merely  encouraged  the  soldiers.  Although  there  might 
be  a  decency  in  mitigating  his  military  prowess  in  the 
eyes  of  those  whose  souls  he  had  in  cure,  there  is  no 
doubt  that  on  this  day  he  acted  the  part  of  a  skillful 
cavalry  officer  and  of  a  valiant  trooper. 

When  the  ceremony  of  the  coronation  was  to  take 
place  in  Westminster  Abbey,  he  wished  to  consecrate 
the  new  monarch,  and  to  put  the  diadem  on  his  head ; 
but,  to  soften  the  mortification  of  the  English,  and  to 
favor  the  delusion  that  the  kingdom  was  to  be  held 
under  the  will  of  the  Confessor  and  by  the  voluntary 
choice  of  the  people,  Aldred  the  Archbishop  of  York  was 
preferred,  and  he  asked  the  assembled  multitude  "  if 
they  would  have  William  for  their  King?"  Odo,  as  a 
reward  for  his  services,  received  a  grant  of  large  posses- 
sions in  Kent,  and  was  created  Earl  of  that  county.  In 
contemplation  of  the  establishment  of  the  AULA  REGIS, 
by  the  agency  of  which  the  Norman  jurisprudence  was 
to  be  introduced  into  England,  and  Norman  domination 
perpetuated  there,  Odo  was  likewise  appointed  GRAND 
JUSTICIAR.  Like  many  ecclesiastics  of  that  time,  he 
had  attended  to  the  Roman  civil  law  and  the  learning  of 
feuds,  as  well  as  to  the  canon  law  ;  and  it  was  expected 
that  he  would  be  useful  not  only  in  judicial  proceedings, 
but  in  the  meetings  of  the  national  assembly,  by  which 
the  Conqueror  thought  of  giving  an  appearance  of  legal- 
ity to  his  rule. 

This  arrangement  was  highly  successful ;  and  so  quiet 
did  all  things  appear  to  be  in  England,  that  in  the  fol- 
lowing year  William  returned  to  Normandy  to  show  his 
new  grandeur  to  his  countrymen,  and  remained  there 
eight  months,  taking  with  him  Edgar  Atheling,  the  le- 
gitimate heir  to  the  throne,  and  many  of  the  principal 
English  nobility.  Odo  was  left  behind  as  Justiciar ;  and 
William  Fitz-Osborne,  a  redoubted  knight,  related  to 
the  ducal  family,  was  associated  with  him  in  the  re- 
gency. The  Norman  chroniclers  pretend  that  Odo  on 
this  occasion  displayed  prudence  and  humanity,  but  had 
to  encounter  fickleness  and  ingratitude  ;  while  the  Sax- 


6  REIGN  OF  \VJLLIA.\r  THE  CONQUEROR.  LI 068. 

on  chroniclers  assert  that  he  oppressed  and  insulted  the 
natives  so  as  to  drive  them  into  rebellion.  The  result 
was  a  general  insurrection  all  over  England,  and  William 
was  obliged  to  return  and  to  reconquer  the  kingdom. 
Odo  was  again  most  useful  to  him  both  in  council  and 
in  the  field,  and  was  confirmed  in  his  office  of  Justiciar, 
which  he  exercised  for  some  years  with  undivided  sway. 
Henry  of  Huntingdon,  after  giving  an  account  of  Wil- 
liam having  put  down  all  resistance,  and  of  the  splendor 
of  his  court,  enumerates  among  the  grandees  present 
"  Odo  Episcopns  Baiocensis,  Justiciarius  ct  Princeps  toiius 
Anglia."1 

I  find  the  report  of  only  one  cause  tried  before  him, 
Gundulphy  Bishop  of  Rochester  v.  Pechot,  Sheriff  of  Cam- 
bridgeshire. The  defendant  had  seized  the  land  of  Fra- 
cenham  in  right  of  the  King,  and  it  was  claimed  by  the 
plaintiff  in  right  of  his  Church.  The  King  ordered  the 
trial  to  take  place  before  Odo,  the  Grand  Justiciar.  He, 
going  to  the  spot,  summoned  a  folkmote,  or  general 
meeting  of  the  freeholders,  who,  after  an  impartial  sum- 
ming up,  found  a  verdict  for  the  crown.* 

There  was  another  trial  of  high  interest  soon  after,  at 
which  Odo,  the  Justiciar,  could  not  well  preside,  as  he 
was  the  party  sued.  Lanfranc,  an  Italian  ecclesiastic, 
having  succeeded  Stigand,  the  Saxon,  as  primate,  com- 
plained that  the  Earl  of  Kent  unlawfully  kept  possession 
of  large  territories,  in  that  county,  which  of  right  be- 
longed to  the  See  of  Canterbury.  Geoffrey,  Bishop  of 
Coutance,  was  specially  appointed  by  the  King  to  act  as 
Justiciar  on  this  occasion.  The  trial  took  place  in  a 
temporary  court  erected  on  Penenden  Heath,  and  lasted 
three  days;  at  the  end  of  which  time  judgment  wa: 
given  for  the  Archbishop  against  the  Earl.* 

1  L.  vi.  p.  371.  The  Saxon  Chronicle  says,  "Fuit  (Odo)  admodum  potei  . 
Fpiscopus  in  Normannia  et  Regi  omnium  maxima  fidelis.  Habuit  aute  .1 
comitatum  in  Anglia  et  quum  Rex  erat  in  Normannia  fuit  ille  primus  ;n 
hac  terra." — Chron.  Sax.  p.  190.  n.  20.  25. 

s "  Hanc  cnim  Vicecomes  Regis  esse  terrain  dicebat ;  scd  Episcopus, 
enndcm  S.  Andreae  potius  esse  affirmabat.  Quare  ante  Regem  venerunt 
Rex  vero  pnecepit,  ut  omnes  illius  comitatus  homines  congregarentur  et 
eorum  judicio  cujus  terra  deceret  rectius  esse  probaretur,"  &c. — Ex  Emulfi, 
Hist,  apud  Angl.  Sax.,  t.  i.  p.  339. 

'The  report  of  the  case,  one  of  the  earliest  to  be  found  in  our  books,  thus 


io82.]  ODO.  7 

Odo,  however,  was  soon  indemnified  from  the  spoils 
of  the  Anglo-Saxon  nobles  ;  and  being  allowed,  notwith- 
standing heavy  complaints  against  him,  to  retain  his 
office  of  Chief  Justiciar,  he  amassed  immense  riches. 
By  turns  he  officiated  as  a  prelate,  celebrating  mass  in 
the  King's  chapel, — he  sat  as  supreme  judge  in  the  AULA 
REGIS, — and  he  commanded  the  King's  troops  in  put- 
ting down  insurrections.1  Although  scrupulous  when 
presiding  on  the  bench,  it  is  said  that  when  intrusted 
with  a  military  command  he  thought  it  unnecessary  to 
discriminate  between  guilt  and  innocence ;  he  executed 
without  investigation  all  natives  who  fell  into  his  hands, 
and  he  ravaged  the  whole  country.2 

After  he  had  held  his  office  of  Chief  Justiciar  nearly 
fifteen  years,  he  quarreled  with  the  King,  by  entering 
into  a  mad  enterprise  which  might  have  materially 
weakened  the  Norman  power  in  England.  An  astrolo- 
ger had  foretold  that  he  should  reach  the  papacy  and 
become  sovereign  of  all  Italy.  The  fortune  of  Guiscard, 
in  Sicily,  had  excited  the  most  extravagant  expectations 
among  his  countrymen,  and  they  openly  boasted  that 
the  whole  of  Europe  would  soon  be  under  Norman  rule. 
Odo  expected  to  gain  his  object,  partly  by  corruption, 
and  partly  by  force  of  arms.  Gregory,  the  reigning 
Pope,  was  still  in  the  vigor  of  manhood,  but  somehow  a' 
vacancy  was  to  be  occasioned,  and  was  to  be  filled  up  by 
the  Bishop  of  Bayeux.  With  this  view  he  bought  a 
stately  palace  at  Rome  ;  he  transmitted  immense  sums  of 
money  to  Italy ;  and  he  induced  Hugh,  Earl  of  Chester, 

begins  :  "  De  placito  apud  Pinendenam,  inter  Lanfraneum  Archiopiscopum, 
et  Odonem  Baiocensem  Episcopum.  Tempori  Magni  Regis  Wilielmi  qui 
Anglicum  regnum  armis  conquisivit,  &c.  Huic  placito  interfuerunt  Gors- 
fridus  Constantiensis,  qui  in  loco  Regis  fuit  et  Justiciam  illam  tenuit ;  Lan- 
francus  Episcopus  qui  placitavit  ;  Comes  Cantise,  &c.  et  alii  multi  Barones 
Regis  et  ipsius  Archiopiscopi,  et  alii  aliorum  comitatuum  homines  etiam 
cum  isto  toto  comitatu,  multi  et  magnse  auctoritatis  viri  Francigenge  scilicet 
et  Angli,"  &c. — Ex  Ernulfi,  Hist.  Apud  Angl.  Sax.,  t.  i.  p.  234.  It  was 
clearly  proved  that,  while  Stigand  was  in  disgrace,  Odo  had  taken  posses- 
sion of  many  manors  belonging  to  the  Archbishopric.  See  the  proceedings 
at  length  in  Selden's  Spicilegium,  p.  197. 

'  "  In  secular!  ejus  functione,  non  solum  rem  exercuit  judiciariam  ;  sed 
bellis  utique  assuefactus  exercitum  Randulphi  Comitis  Estangliae,  suorum- 
que  confsederatorum,  profligavit ;  et  in  ultione  necis  Walteri  Dunelmensis 
Episcopi,  Northumbrian!  late  populatus  est." — Spel.  Gloss,  p.  337. 

*  Sim.  47.     Malm.  62.     Chron.  Sax.  184.     Flor.  639. 


8  REIGN  OF  WILLIAM  THE  CONQUEROR.  [1087. 

and  a  number  of  other  Norman  nobles  settled  in  Eng- 
land, to  whom  he  promised  Italian  principalities,  to  join 
him,  accompanied  by  a  considerable  body  of  military  re- 
tainers, and  to  embark  with  him  for  a  port  in  the 
Mediterranean.  This  enterprise  had  been  carefully  con- 
cealed from  the  knowledge  of  the  King.  But  William, 
hearing  of  it  before  the  fleet  sailed,  highly  disapproved 
of  it,  dreading  that,  after  such  a  loss  of  treasure  and 
soldiers,  the  mutinous  Anglo-Saxons  might  shake  off  his 
yoke.  He  therefore  seized  the  money  and  stores  pre- 
pared for  the  enterprise,  and  gave  orders  that  Odo 
should  be  arrested.  The  officers  of  justice,  out  of  re- 
spect for  the  immunities  which  ecclesiastics  now  assumed, 
scrupled  to  execute  the  command.  William  thereupon 
arrested  his  brother  with  his  own  hands.  Odo  insisted 
that  he  was  a  prelate,  and  therefore  exempt  from  all 
temporal  jurisdiction ;  whereupon  William  exclaimed, 
"  God  forbid  that  I  should  touch  the  Bishop  of  Bayeux, 
but  I  make  the  Earl  of  Kent  my  prisoner."  The  Earl- 
Bishop  was  immediately  sent  over  to  Normandy,  and 
kept  in  close  confinement  there  for  five  years  among 
many  other  state  prisoners.1 

At  last,  the  Conqueror  being  on  his  death-bed,  it  was 
suggested  to  him  by  his  ghostly  advisers,  that  if  he 
hoped  for  mercy  from  God  he  ought  to  show  mercy  to 
man,  and  to  set  at  liberty  the  noble  captives  whom  he 
had  long  immured  in  the  dungeons  of  Rouen.  After 
trying  to  justify  their  detention,  partly  on  the  ground  of 
their  treasons,  partly  on  the  plea  of  necessity,  he  as- 
sented to  the  request,  but  long  insisted  on  excepting  his 
brother  Odo,  a  man,  he  observed,  whose  turbulence 
would  be  the  ruin  both  of  England  and  Normandy. 
The  friends  of  the  prelate,  by  repeated  solicitations, 
extorted  from  the  reluctant  monarch  an  order  for  his 
immediate  enlargement. 

Odo,  at  the  moment  when  he  recovered  his  liberty, 
hearing  that  the  Conqueror  had  expired,  and  that  his 
naked  corpse  lay  neglected  on  the  floor  of  a  chamber  of 
the  deserted  palace,  instead  of  seeing  to  the  decent  in- 
terment of  his  brother  and  benefactor,  proceeded  with 

'  Chron.  Sax.  184.  Flor.  641.  Malm.  63.  H.  Hunt.  731.  Angl.  Sax.  i. 
855. 


io87-J  ODO.  9 

all  speed  to  England  to  make  advantage  of  the  election 
to  the  vacant  throne.  On  condition  of  being  restored  to 
all  his  vast  estates  in  Kent,  and  to  his  office  of  Chiet 
Justiciar,  he  agreed  to  support  the  claim  of  Rufus,  and 
assisted  at  the  coronation  of  the  new  sovereign.1  Ac- 
cordingly, he  presided  in  the  sittings  of  the  AULA  REGIS 
held  at  the  Feast  of  Christmas,  1087,  and  the  Feast  of 
Easter,  1088.  But  his  unreasonable  demands  of  further 
aggrandizement  being  refused,  and  his  resentment  being 
inflamed  against  Lanfranc  the  primate,  to  whom  he  im- 
puted his  sufferings  in  the  end  of  the  last  reign,  as  well 
as  his  present  disappointment,  he  entered  into  a  con- 
spiracy with  Geoffrey  de  Coutance,  Roger  Montgomery, 
Hugh  Bigod,  Hugh  de  Grentmesnil,  and  other  Norman 
barons,  to  invite  over  Robert  Curthose,  his  elder  nephew, 
and  to  make  him  sovereign  of  England  as  well  as  of  Nor- 
mandy, on  the  specious  pretenses  that  the  right  of 
primogeniture  should  be  respected,  and  that  those  who 
held  estates  both  in  Normandy  and  in  England  could 
not  be  safe  unless  both  countries  were  ruled  by  the  same 
sovereign.  The  confederates  immediately  took  the  field, 
expecting  Robert  to  join  them  with  a  large  army.  Odo 
intrusted  his  strong  castle  of  Rochester  to  the  care  of 
Eustace,  Count  of  Boulogne,  with  a  garrison  of  five  hun- 
dred knights,  and  himself  retired  to  Pevensey,  to  await 
the  arrival  of  his  nephew  and  to  proclaim  him  king. 
But  Rufus,  having  detached  a  body  of  troops  to  lay  siege 
to  Rochester,  marched  in  person  in  pursuit  of  the  Earl- 
Bishop,  shut  him  up  within  the  walls  of  a  castle  on  the 
.sea-shore,  and,  after  a  blockade  of  seven  weeks,  com- 
pelled him  to  surrender, — Robert,  with  his  usual  giddi- 
ness, having  occupied  himself  with  frivolous  amusements, 
instead  of  hastening  across  the  channel  to  claim  his 
birthright.  By  the  terms  of  capitulation,  life  and  liberty 
were  granted  to  Odo,  on  condition  that  he  should  swear 
to  deliver  up  the  castle  of  Rochester,  and  to  abjure  the 
realm  of  England  forever. 

His  resources  were  not  yet  quite  exhausted.  Being 
conducted  by  a  small  escort  to  the  fortress,  he  was  ad- 
mitted into  the  presence  of  Eustace,  and  ordered  him  to 
surrender  it,  but  made  him  a  private  signal  that  he 

1  H.  Hunt.  lib.  vii.  p.  212. 


ro  REIGN  OF  WILLIAM  THE  CONQUEROR.  [1096. 

wished  to  be  disobeyed.  The  shrewd  governor  up- 
braided him  as  a  traitor  to  the  cause,  and  made  prison- 
ers both  him  and  his  guard.  Rufus  was  excited  to  the 
highest  indignation  by  the  success  of  this  artifice,  and 
pressed  the  siege  with  the  utmost  rigor,  being  supported 
by  a  band  of  natives,  who  on  this  occasion  rallied  round 
him  to  be  revenged  for  the  oppressions  they  had  suffered 
from  the  Grand  Justiciar.  However,  the  place  was  as 
obstinately  defended  by  Odo,  till  the  ravages  of  a  pesti- 
lential disease  compelled  him  to  propose  a  surrender  on 
honorable  conditions.  With  considerable  difficulty  he 
obtained  a  promise  that  the  lives  of  the  garrison  should 
be  spared ;  but  the  demand  that  they  should  all  depart 
with  the  honors  of  war,  and  that,  as  he  himself  withdrew, 
the  besiegers,  out  of  respect  to  his  sacred  character, 
should  abstain  from  every  demonstration  of  triumph, 
was  contemptuously  rejected.  Accordingly,  his  men 
were  all  obliged  to  lay  down  their  arms,  and  when  he 
himself  appeared,  although  clad  only  in  canonicals,  the 
trumpets  being  ordered  to  sound  a  flourish,  as  he  passed 
through  the  ranks  the  English  shouted  "  halter  and  gal- 
lows "  in  his  ears.  Knowing  that,  by  the  immunities  of 
churchmen,  his  life  was  safe,  he  muttered  threats  and 
defiance ;  but  he  was  immediately  put  on  board  a  ship 
for  Normandy,  with  a  solemn  admonition  that,  if  he 
ever  again  set  foot  on  English  ground,  nothing  should 
save  him  from  an  ignominious  death.1 

It  was  charitably  hoped  that,  renouncing  the  pomps 
of  this  world,  he  would  pass  the  remainder  of  his  days  in 
superintending  his  diocese,  which  he  had  long  grievousl)' 
neglected,  and  in  seeking  to  make  atonement  by  penance 
for  the  irregularities  of  his  civil  and  his  military  career  ; 

1  Chron.  Sax.  195.  Order.  Vit.  668.  Sim.  215.  In  Halstead's  "  Kent" 
there  is  a  drawing  of  his  seal,  on  one  side  of  which  he  appears  as  an  Earl, 
mounted  on  his  war  horse,  clad  in  armor,  and  holding  a  sword  in  his  right 
hand  ;  but  on  the  reverse  he  appears  in  his  character  of  a  Bishop,  dressed  in 
his  pontifical  habit  and  pronouncing  the  benediction.  In  the  former  capac- 
ity he  left  a  natural  son,  who  afterwards  gained  great  renown  in  the  court 
of  Henry  I.  In  the  latter  he  was  celebrated  for  his  munificence  to  the  see 
of  Bayeux,  which  he  filled  about  fifty  years,  rebuilding  from  the  ground  the 
Church  of  Our  Lady  of  Bayeux,  furnishing  it  with  costly  vestments  and  or- 
naments of  gold  and  silver,  and  endowing  a  chantry  for  twelve  monks  to 
pray  for  his  soul,  "  bestowing  his  wealth,  however  indirectly  gotten,  on  the 
church  and  poor." 


io66.]  WILLIAM  FITZ-OSBORNE.  n 

but,  after  spending  a  short  time  at  Bayeux,  he  could 
endure  a  life  of  tranquillity  no  longer,  and,  as  he  was  de- 
barred from  revisiting  England,  he  wandered  about  from 
country  to  country  on  the  Continent  in  quest  of  adven- 
tures, and  at  last  died  in  a  state  of  great  destitution  at 
Palermo. 

One  original  historian,  in  drawing  his  character,  says 
(I  am  afraid  with  too  much  justice),  that  "  instead  of  at- 
tending to  the  duties  of  his  station,  he  made  riches  and 
power  the  principal  objects  of  his  pursuit  ;"1  while 
another,  who  had  probably  shared  in  his  bounty,  de- 
clares that  "  he  was  a  prelate  of  such  rare  and  noble 
qualities,  that  the  English,  barbarians  as  they  were, 
could  not  but  love  and  fear  him."2 

There  were  several  other  Chief  Justiciars  in  the  reign 
of  William  the  Conqueror,  but  none  of  their  proceedings 
connected  with  the  administration  of  the  law  are  handed 
down  to  us,  excepting  the  famous  trial  on  Penenden 
Heath  between  Odo  and  Lanfranc  ; — and  a  very  short 
notice  of  them  will  be  sufficient. 

William  Fitz-Osborne,  for  a  short  time  associated  in 
the  office,  was  related  to  the  Dukes  of  Normandy  both 
by  father  and  mother,  and  he  had  been  brought  up  with 
the  CONQUEROR  from  infancy.  Under  his  advice  Wil- 
liam acted  in  all  the  negotiations  with  Edward  the  Con- 
fessor and  Harold  respecting  the  succession  to  the  crown 
of  England,  and  preparations  were  at  last  made  to  seize 
it  by  force  of  arms.  To  the  praise  of  consummate  wis- 
dom in  the  cabinet  he  added  that  of  unsurpassed  courage 
in  the  field,  and  he  acted  a  conspicuous  part  in  the  deci- 
sive battle  of  Hastings,  insomuch  that  he  was  proclaimed 
to  be  "  the  pride^f  the  Normans  and  the  scourge  of  the 
English."8  The  earldom  of  Hereford  was  conferred  up- 
on him,  with  large  possessions  in  the  marches  of  Wales. 
During  the  time  when  he  was  Chief  Justiciar,  "  Edric 
the  Wild,"  whose  possessions  lay  in  that  country,  in 
conjunction  with  several  other  Anglo-Saxon  Thanes,  and 

1  Order.  Vit.  255. 

1  Pict.  153. 

8Pict.  151.  Order.  Vit.  203.  Spelman  says,  "Acerrimus  autem  Anglo- 
rum  hostis  fuit,  et  qui  Normannise  Ducem  pne  aliis  omnibus,  ad  invasionem 
Angliae  excitavit,  funestoque  illo  Hastingense  prselio  tertiam  aciem  duxit." 
— Gloss,  p.  336. 


i* REIGN  OF  WILLIAM  THE  CONQUEROR.  [107* 

backed  by  the  Princes  of  Wales,  set  his  authority  at  de- 
fiance, and  continued,  after  various  repulses,  to  make 
head  against  him  till  William  returned  from  Normandy, 
and  effectually  put  down  the  insurrections  which  had 
taken  place,  in  his  absence,  in  this  and  other  parts  of  the 
kingdom.  Notwithstanding  their  general  good  under- 
standing, differences  would  occasionally  arise  between 
the  Conqueror  and  this  favored  captain.  It  is  related 
that,  on  one  occasion,  Fitz-Osborne,  being  steward  of 
the  household,  or  "  Dapifer,"  had  set  upon  the  royal 
table  the  flesh  of  a  crane  scarcely  half  roasted,  when  the 
King,  who  in  his  old  age  was  much  of  a  gourmand,  and 
particularly  prized  crane  when  well  cooked,  in  his  anger 
aimed  a  blow  at  him  ;  this  was  warded  off  by  Eudo, 
another  favorite,  but  it  so  enraged  Fitz-Osborne  that  he 
instantly  threw  up  his  office.  He  was  succeeded  by 
Eudo,  who  is  thenceforth  designated  by  chroniclers  as 
"  Eugo  Dapifer."  Fitz-Osborne,  having  been  restored 
to  the  favor  of  his  sovereign,  and  created  Lord  of  the 
Isle  of  Wight,  died  in  the  year  1072.' 

Geoffrey,  Bishop  of  Coutance,  appointed  Chief  Jus- 
ticiar  for  a  special  occasion,"  was  one  of  the  fighting 
prelates  who  accompanied  William,  with  the  sanction 
of  the  Pope,  in  his  memorable  expedition ;  but  having 
given  judgment  against  Odo,  he  incurred  the  displeas- 
ure of  this  powerful  favorite,  and  his  preferment  in  Eng- 
land was  stopped. 

On  Odo's  disgrace,  William  de  Warrenne  and  Rich- 
ard de  Benefacta  were  jointly  appointed  to  the  office  of 
Chief  Justiciar.  The  former,  a  countryman  and  com- 
panion of  the  Conqueror,  is  chiefly  noticed  as  being  the 
ancestor  of  the  celebrated  William  de  Warrenne  \\ho 
gained  such  renown  by  his  actions  in  the  reigns  of 
Henry  III.  and  Edward  I.;  and  is  still  more  celebrated 
for  his  answer,  on  being  required  to  show  his  title  to 
his  estate,  —  when,  drawing  his  sword,  he  exclaimed, 
"William  the  Bastard  did  not  conquer  the  kingdom  for 
himself  alone  ;  my  ancestor  was  a  joint  adventurer  in 

1  Order.  Vit  218.     Mad.  Ex.  i.  31-40.    Wilm.  Malm.  396-431. 

"  Gpisfridus  Constanciensis  Episcopus,  in  loco  Regis  fuit,  et  Justiciam 
tennit  in  illo  notabili  placito  apud  Pinendene,  inter  Lanfrancum  Archio- 
j.i.coju:m  Cantuar,  et  Odonem  Comitem  Cantii." — Textus  Ruff.  f.  50. 


WILLIAM  DE  WARRENE.  13 

the  enterprise ;  what  he  gained  by  the  sword  I  will 
maintain."* 

How  Richard  de  Benefacta  came  by  this  surname  has 
puzzled  antiquaries.  He  was  originally  called  Richard 
Fitz-Gislebert,  or  Fitz-Gilbert,  being  the  son  of  Gisle- 
bert,  or  Gilbert,  Count  of  Brion  in  Normandy.  He 
gained  distinction  at  Hastings,  and  as  a  reward  for  his 
bravery  he  received  8  lordships  in  Surrey,  35  in  Essex, 
3  in  Cambridgeshire,  2  in  Kent,  I  in  Middlesex,  I  in 
Wiltshire,  and  95  in  Suffolk,  besides  all  the  burgages  in 
the  town  of  Ipswich.  He  took  an  active  part  in  the 
great  survey  recorded  in  Doomsday ;  in  which,  as  may 
be  supposed,  his  name  very  frequently  appears.  His 
descendants  enjoyed  much  distinction  during  the  reigns 
of  all  the  Norman  kings. 

These  two  Grand  Justiciars,  during  their  joint  admin- 
istration, invented  a  new  punishment,  to  be  inflicted 
on  disturbers  of  the  public  peace.  Having  encountered 
and  defeated  a  powerful  band  of  insurgents  at  a  place 
called  Fagadune,  they  cut  off  the  right  foot  of  all  they 
took  alive,  including  the  ringleaders,  the  Earls  of  Nor- 
folk and  Hereford.  It  seems  then  to  have  been  con- 

1  The  first  William  de  Warrene  died  1089,  and  was  buried  in  the  chap- 
ter-house of  a  monastery  he  had  founded  at  Lewes  for  monks  of  the  Clu- 
niac  order.     The  following  epitaph  was  engraved  on  his  tomb : — 
"  Hie  Guilelmus  Comes,  locus  est  laudis  tibi  fomes 

Hujus  fundator,  et  largus  sedis  amator. 

Iste  tuum  funus  decorat,  placuit  quia  munus 

Pauperibus  Christi,  quod  prompt^  mente  dedisti. 

Ille  tuos  cineres  servat  Pancratius  haeres, 

Sanctorum  castris,  qui  te  sociabit  in  astris. 

Optime  Pancrati,  fer  opem  te  glorificanti ; 

Daque  poli  sedem,  talem  tibi  qui  dedit  sedem." 

It  is  reported  that  "  this  Earl  William  did  violently  detain  certain  lands 
from  the  monks  at  Ely,  for  which  being  often  admonished  by  the  abbot, 
and  not  making  restitution,  he  died  rri-erably  ;  and,  though  his  death  hap- 
pened very  far  from  the  Isle  of  Ely,  the  same  night  he  died,  the  abbot  lying 
quietly  in  his  bed  and  meditating  on  heavenly  things,  heard  the  soul  of  the 
Earl,  in  its  carriage  away  by  the  devil,  cry  out  loudly,  and  with  a  known 
and  distinct  voice,  '  Lord  have  mercy  on  me !  Lord  have  mercy  on  me !' 
And  moreover,  that  the  next  day  the  abbot  acquainted  all  the  monks  in 
chapter  therewith  ;  and  likewise  that,  about  four  days  after,  there  came  a 
messenger  to  him  from  the  wife  of  this  Earl,  with  one  hundred  shillings  for 
the  good  of  his  soul,  who  told  them  that  he  died  the  very  hour  the  abbot 
heard  that  outcry  ;  but  that  neither  the  abbot  nor  any  of  the  monks  would 
receive  it,  not  thinking  it  safe  for  them  to  take  the  money  of  a  damned  per- 
son." — See  Dugdale's  "  Baronage,"  p.  73,  74. 


I4  REIGN  OF  WILLIAM  RUFUS.          [1087. 

sidcred  that  in  times  of  rebellion  the  Judges  were  to  ex- 
ercise martial  law,  or  to  disregard  all  law,  according  to 
their  own  arbitrary  will. 

There  is  only  one  other  Chief  Justiciar  recorded  as 
having  served  under  the  Conqueror;  William  de  Ca- 
rilcfo,  or  Harilegho,  who  was  a  pious  priest,  and  fought 
only  with  spiritual  weapons.  He  was  Abbot  of  St. 
Vincent's  in  Normandy,  and  without  having  been  in  the 
host  which  invaded  England,  or  ever  having  put  on  a 
hauberk  (strange  to  say !),  from  the  mere  reputation  of 
his  sanctity  he  was  nominated  to  the  bishopric  of  Dur- 
ham. He  was  consecrated  at  Gloucester  by  the  Arch- 
bishop of  Canterbury,  in  the  presence  of  the  King  and 
the  assembled  prelates  of  the  realm.  Simeon,  having 
described  this  ceremony,  adds,  "  Erat  acerrimus  ingenio, 
subtilis  consilio,  magnae  eloquentia  simul  et  sapientias." 
He  is  much  celebrated  for  the  purity  and  impartiality 
with  which  he  administered  justice  when  placed  at  the 
head  of  the  AULA  REGIA  ;  as  well  as  the  vigor  which  he 
displayed  in  asserting  the  privileges  of  his  see  against 
the  King.  In  the  succeeding  reign  he  was  Chief  Jus- 
ticiar a  second  time  after  the  fall  of  Odo  ;  but  soon 
quarreled  with  Rufus,  who  was  a  notorious  spoliator  of 
Church  property,  and  he  was  obliged  to  fly  into  Nor- 
mandy, the  temporalities  of  his  see  being  seized  into  the 
King's  hands.  However,  when  Rufus  made  a  northern 
progress  to  receive  the  homage  of  Malcolm,  King  of 
Scotland,  and  perceived  the  veneration  with  which  the 
exiled  Bishop  was  regarded,  he  had  the  generosity  to 
recall  him  to  his  see,  and  made  restitution  of  the  lands 
of  which  he  had  deprived  it.  The  prelate  employed  the 
ample  revenues  thus  restored  to  him  in  the  munificent 
work  of  erecting  a  new  and  splendid  cathedral  at  Dur- 
ham, on  a  plan  which  he  had  brought  with  him  from 
France.  He  also  presented  to  the  Church  a  large  store 
of  books  and  ornaments  collected  by  him  during  his 
banishment.  Again  falling  under  the  King's  displeasure, 
and  being  obliged  to  obey  a  mandate  to  travel  towards 
Windsor,  under  the  pressure  of  severe  illness,  he  expired 
soon  after  his  arrival  there,  on  the  morrow  of  the  Epiph- 
any, in  the  year  1095.  Such  was  his  modesty,  that  he 
declined  in  his  last  moments  the  honor  of  burial  in  his 


I099-]  FLAMBARD.  15 

cathedral,  near  the  holy  relics  of  St.  Cuthbert ;  and  he 
was,  by  his  own  desire,  interred  on  the  north  side  of  the 
chapter-house.  But  he  himself  was  regarded  as  a  Saint : 
miracles  were  worked  at  his  shrine ;  and  this  continued 
the  cherished  place  of  sepulture  of  succeeding  bishops. 
The  monkish  historians  of  Durham,  in  addition  to  enco- 
miums on  his  piety,  his  liberality,  his  zeal  for  the  rights 
of  the  Church,  his  genius,  and  his  learning,  praise  him 
loudly  for  the  simplicity  of  his  manners,  and  the  tem- 
perance of  his  life.1 

Rufus's  only  other  Chief  Justiciar,  in  all  respects  a 
contrast  to  his  predecessor,  was  Ralph  Flambard,  the 
"  devouring  Torch,"  who  for  some  time  held  the  Great 
Seal,  and  whom  I  have  consequently  described  in  my 
LIVES  OF  THE  CHANCELLORS.  To  this  work  I  must  re- 
fer such  of  my  readers  as  would  become  acquainted  with 
his  revolting  atrocities  and  his  edifying  penitence.  I 
may  add,  that  while  he  was  Chief  Justiciar  the  sittings 
of  the  Curia  Regis  were  first  held  in  Westminster  Hall. 
The  Saxon  Kings  had  founded  a  monastery  on  a  piece 
of  ground  then  surrounded  by  the  Thames,  and  called 
"  Thorney  Island."  In  relation  to  its  direction  from  the 
City  of  London,  the  metropolis  of  the  kingdom,  the  new 
foundation  received  the  name  of  "  West-minster ;"  and 
here  a  royal  palace  was  erected,  which  was  enlarged  and 
beautified  by  Edward  the  Confessor,  but  was  still  mean, 
compared  with  the  stately  structures  erected  by  the 
Normans  at  Rouen.  The  Conqueror,  although  he  ob- 
served that  it  contained  no  hall  in  which  the  great  coun- 
cil of  the  nation  could  assemble,  or  in  which  justice 
could  conveniently  be  administered,  had  been  too  much 
occupied  with  graver  matters  to  supply  the  defect ;  but 
William  Rufus  built,  adjoining  to  the  palace  at  West- 
minster, the  magnificent  hall  which  is  looked  upon  with 
such  veneration  by  English  lawyers,  and  which  is  the 
scene  of  so  many  memorable  events  in  English  history. 
This  being  completed  at  Whitsuntide,  1099,  the  Chief 
Justiciar,  Flambard,  sat  here  in  the  following  Trinity 
term  ;  and  the  superior  courts  of  justice  have  been  held 
in  it  for  750  years.  The  concentration  thus  established 

1  Godwin  de  Prses.  731.     Roger  de  Wendover,  xi.  32.     Will.  Malm.  486. 


t6  REIGN  OF  HENRY  I.  [noo. 

has  perhaps  contributed  to  tne  ascendency  which  Eng- 
lish law  and  English  lawyers  have  so  long  enjoyed.1 

It  might  have  been  expected  that  Henry  I.,  who  at 
the  commencement  of  his  reign  wished  to  make  himself 
popular  by  restoring  Saxon  institutions,  would  have 
abolished  or  reformed  the  office  of  Chief  Justiciar,  of 
which  such  heavy  complaints  had  been  made  by  the 
natives;  but  he  allowed  it  to  remain  in  full  vigor,  and 
he  soon  appointed  to  it  the  famous  Roger,  Bishop  of 
Salisbury,  who  rendered  it  more  odious  than  it  had  ever 
been  before.  The  extraordinary  vicissitudes  of  his 
career,  from  his  reading  mass  as  a  village  curate  in 
Normandy  till  he  was  obliged  to  surrender  his  castle  of 
Devizes  to  King  Stephen,  and  died  miserably,  I  have 
already  recorded.9 

The  only  other  Chief  Justiciar  of  much  note  during 
this  reign  was  Ralph  Basset,  son  of  one  of  the  compan- 
ions of  the  Conqueror,  and  the  founder  of  a  family  in 
England  of  great  distinction  for  many  generations.3  Of 
his  judicial  exploits  there  is  no  record,  except  at  a  grand 
assize  which,  during  the  King's  absence  in  Normandy, 
he  held  at  Huncote  in  Leicestershire.  Here  he  con- 
victed capitally,  and  executed,  no  fewer  than  four  score 
and  four  thieves,  and  deprived  six  others  of  their  eyes 
and  their  virility  ;  drawing  upon  himself  the  imputation 
of  cruelty,  and  not  escaping  the  suspicion  that  he  was 
influenced  by  a  desire  to  enrich  himself  from  the  forfeit- 
ures which  were  incurred.1  He  held  the  office  for  a 
long  period,  and  was  much  more  praised  for  the  vigor 

1  Independently  of  the  prestige  attaching  us  to  Westminster  Hall,  I  would 
caution  my  brethren  against  the  desire,  from  some  partial  convenience,  to 
disperse  themselves  in  separate  bodies  over  different  regions  of  the  me- 
tropolis. 

'Lives  of  Chancellors,  vol.  i.  ch.  xi. 

*  Now  represented  by  the  Baroness  Bassett. 

4  A.  D.  1124.  "Toto  hoc  anno  fuit  Rex  Henricus  in  Normanniil.  Hoc 
ipso  anno,  post  S.  Andreae  festum  tenuit  Radulfus  Bassett  et  Regis  Theini 
Procerum  Concilium  in  Lethecaestrescire  apud  Hunde-hoge,  et  suspenderunt 
ibi  tot  fures  quot  antea  nunquam  ;  scilicet  in  parvo  temporis  spatio,  omnino 

¥jatuor  et  quadraginta  viros.  Sex  item  viros  privarunt  oculis  et  testiculis." 
he  writer  goes  on  pathetically  to  describe  the  oppressed  condition  of  his 
countrymen  under  the  Chief  Justiciar.  "  Admodum  gravis  fuit  his  annus. 
Qui  quicquam  honorum  habeat,  iis  privatus  erat  per  magna  vectigalia,  et 
per  iniquia  decreta  ;  qui  nihil  habebat  periit  fame  " — Chron.  Sax.  ad  attn, 
1124. 


OLD  WESTMINSTER   1IA1.L. 


r  1 5 4.]  PRINCE  HENR  Y— RICHARD  DE  L  UCI.      1 7 

lhan  the  clemency  or  justice  with  which  he  exercised  its 
'functions.1 

The  Chief  Justiciars  of  King  Stephen  were  not  men  of 
much  renown8 — till  the  last — who  was  no  other  than 
Prince  Henry,  afterwards  his  successor,  and  so  famous 
under  the  name  of  Henry  II.  After  the  long  struggle 
for  the  crown  of  England  between  the  daughter  of  Hen- 
ry I.  and  him  who  pretended  to  be  the  heir  male  of  the 
Conqueror,  it  was  at  last  settled  that  he  should  reign 
during  his  life,  and  that  her  son  by  Geoffrey  Plantagenet 
should  be  immediately  appointed  Chief  Justiciar,  and 
should  mount  the  throne  on  Stephen's  death.8  I  shall 
not  attempt  to  rival  Lord  Lyttleton  by  attempting  a 
history  of  this  Chief  Justiciar  from  his  cradle  to  his 
grave.  I  must  content  myself  with  saying  that  he  held 
the  office  above  a  year.  During  the  first  six  months  he 
actually  presided  in  the  AULA  REGIS,  and,  with  the  as- 
sistance of  the  Chancellor  and  the  other  great  officers  of 
state,  decided  the  causes  civil  and  criminal  which  came 
before  this  high  tribunal.  He  then  paid  a  visit  to  the 
continental  dominions  which  he  held  in  his  own  right 
and  in  right  of  Eleanor  his  wife,  extending  from  Picardy 
to  the  mountains  of  Navarre.  Sojourning  in  Normandy 
when  he  heard  of  the  death  of  Stephen,  he  was  impa- 
tient to  take  possession  of  the  crown  which  had  been 
secured  to  him  by  the  late  treaty.  A  long  continuance 
of  stormy  weather  confined  him  a  prisoner  in  the  haven 
of  Barfleur,  but  at  last  he  reached  Southampton,  and, 
being  crowned  King  of  England,  the  first  act  of  his  reign 
was  to  appoint  a  new  Chief  Justiciar. 

The  object  of  his  choice  was  Richard  de  Luci,  a  pow- 
erful baron  of  a  distinguished  Norman  family,  who  was 
expected  to  govern  the  realm  with  absolute  sway  in 
Henry's  name.  Although  he  long  nominally  retained 

1  He  was  succeeded  by  his  son  Richard  Basset,  of  whom  I  do  not  find  any 
more  precise  notice  than  by  Ordericus  Vitalis,  who  says,  "  Ricardus  Basset, 
cujus  in  Anglia,  vivente  Henrico  Rege,  potentia,  utpote  Capitalis  Justitiarii, 
magna  fuit." — Ord.  Vit.  ad  ami.  1136. 

3  Geoffrey  Ridel,  Geoffrey  de  Clinton,  and  Alberic  de  Vere. 

8  "Anno  Gratias  1153,  qui  est  annus  18  regni  Regis  Stephani,  pax  Angliae 
reddita  est,  pacificatis  ad  invicem  Rege  Stephano  et  Henrico  Duce  Nor- 
rnanniae.  Rex  vero  constituit  Ducem  Justiciarium  Angliae  sub  ipso,  et 
omnia  negotia  per  eum  terminabantur.  Et  ab  illo  tempore  Rex  et  Dux 
unanimes  erant  in  regimine  Regni." — Hoveden,  voL  i.  p.  490.  n.  20. 
I. — 2 


i8  REIGN  OF  HENRY  II.  [1162. 

his  office,  it  was  soon  stripped  of  all  its  power  and  splen- 
dor. The  Lord  Chancellor  had  hitherto  been  a  subor- 
dinate officer,  but  the  towering  ambition  and  lofty 
genius  of  Thomas  a  Becket,  almost  from  the  moment 
when  he  received  the  Great  Seal,  reduced  all  the  other 
ministers  of  the  crown  to  insignificance,  and,  till  the 
time  when,  becoming  Archbishop  of  Canterbury,  he 
quarreled  with  his  benefactor,  all  the  power  of  the  state 
was  concentrated  In  his  hands.  Encroaching  on  the 
functions  of  the  Chief  Justiciar,  he  not  only  ruled  all 
questions  that  came  before  the  AlJLA  REGIS,  although 
only  sixth  in  point  of  rank  of  those  who  sat  as  judges 
there,1  but  the  domestic  government  of  the  country  and 
foreign  negotiations  were  exclusively  intrusted  to  him, 
and  when  war  broke  out  he  commanded  the  royal  army 
in  the  field. 

After  the  King's  quarrel  with  the  Archbishop,  the  im- 
portance of  De  Luci  was  very  much  enhanced,  and  we 
not  only  find  judicial  proceedings  recorded  as  having 
taken  place,  "  Coram  Ricardo  de  Luci  et  aliis  Baronibus 
apud  Westmonasterium,"  but  we  learn  that  he  went 
about  administering  justice  all  over  the  kingdom,  and 
that  he  quelled  a  dangerous  insurrection  in  London. 
To  him  we  are  chiefly  indebted  for  the  CONSTITUTIONS 
OF  CLARENDON,  by  which  a  noble  effort  was  made  to 
shake  off  the  tyranny  of  Rome,  and  which  were  adopted 
as  the  basis  of  our  ecclesiastical  polity  at  the  Reforma- 
tion.9 He  was  excommunicated  for  the  part  he  had 
taken  in  this  heretical  production,  but  afterwards  made 
his  peace  with  the  Church.  At  last  he  was  overwhelmed 
by  the  terrors  of  superstition,  and,  abandoning  worldly 
cares  and  grandeur,  he  laid  down  his  office,  became  a 
monk,  and  died  wearing  the  cowl  in  a  monastery  which 
he  had  founded.1 

His  successor  was  Robert,  Earl  of  Leicester.  Although 
inferior  men  now  held  the  Great  Seal,  the  office  of  Chief 
Justiciar  did  not  recover  its  splendor  till  near  the  end  of 

1 "  He  came  after  the  Justiciar,  the  Constable,  the  Mareschall,  the 
Seneschall,  and  the  Chamberlain." — Madd.  Exch.  c,  ii. 

*  Madd.  Exch.  i.  146-701. 

1  "Ric.  de  Luci  Justiciarius  Anglire,  relicti  Justiciaria  potestate,  factus  est 
Canonicus  regularis  in  Abbatik  de  Lesnes  quam  ipse  in  fundo  suafecerat." 
— fi.  Hoveden,  f.  337.  <z. 


1 1 74-]          RANULFUS  DE  GLANVILLE.  19 

this  reign,  when  it  was  filled  by  one  of  the  greatest  men 
who  have  appeared  in  English  history.  We  are  in- 
formed of  only  one  judgment  of  the  King's  Court  while 
the  Earl  of  Leicester  presided  there,  and  this  upon  the 
ex-Chancellor,  Thomas  a  Becket,  who  was  first  amerced 
in  £$oo,  and,  proving  contumacious,  was  ordered  to  be 
imprisoned.1 

I  will  therefore  pass  on  to  RANULFUS  DE  GLANVILLE, 
equally  distinguished  as  a  lawyer,  a  statesman,  and  a 
soldier. 

He  was  born  in  the  end  of  the  reign  of  Henry  L,  at 
Stratford,  in  the  county  of  Suffolk  ;  his  family  was  noble, 
but  I  do  not  find  any  particulars  of  his  progenitors.1 
He  afforded  a  rare  instance  in  those  days  of  a  layman 
being  trained  as  a  good  classical  scholar,  and  being 
initiated  in  all  the  mysteries  of  the  feudal  law.  At  the 
same  time  he  was  a  perfect  knight,  being  not  only  famil- 
iar with  all  martial  exercises,  but  having  studied  the 
art  of  manoeuvring  large  bodies  of  men  in  the  field, 
according  to  the  most  scientific  rules  then  known.  He 
attached  himself  to  several  Chief  Justiciars,8  sometimes 
assisting  them  in  despatching  business  in  the  AULA 
REGIS,  and  sometimes  accompanying  them  in  their  cam- 
paigns. 

He  inherited  a  considerable  estate  from  his  father, 
and  he  obtained  large  possessions  in  right  of  his  wife 
Berta,  daughter  and  heiress  of  Theobald  de  Valeyinz, 
Lord  of  Parham.  Part  of  these  were  situate  in  the 
county  of  York,  where  he  seems  to  have  established  his 
principal  residence.  Under  King  Stephen  he  was  re- 
ceiver for  the  forfeited  Earldom  of  Conan,  and  collector 
of  the  rents  of  the  Crown  in  Yorkshire  and  Westmore- 
land.4 

During  the  year  1174,  the  2oth  of  Henry  II.,  he  was 
High  Sheriff  of  Yorkshire,  and  in  this  capacity  he  con- 
ferred greater  glory  on  his  country  than  any  English- 

1  Hoved.  vol.  ii.  494.  n.  I.  10.  20  ;  495.  n.  10. 

1 "  Ranulph  de  Glanvilla  fuit  ver  prseclarissimus  genere,  utpote  de  nobili 
sanguine." — See  Preface  to  Lord  Coke's  8th  Rep.  xxi. 

*  From  his  knowledge  of  practice,  and  all  the  forms  of  procedure,  there 
seems  reason  to  think  that  he  must  some  time  have  acted  as  prothonotary  or 
clerk  of  the  court,  although  never  in  orders. 

4  Madd.  Exch.  i.  297.  (g\  430.  (6),  328.  (/) ;  ii.  183.  (y\  200.  (f). 


ao  REIGN  OF  H£NRY  II.  [1174. 

man,  before  or  since,  holding  merely  a  civil  office. 
Henry  II.  being  hard  pressed  in  his  continental  domin- 
ions by  the  unnatural  alliance  between  his  rebellious 
sons  and  Louis  VII.,  the  Scots  under  their  King,  Wil- 
liam the  Lion,  invaded  England,  and  committed  cruel 
ravages  in  the  northern  counties.  Being  stopped  on  the 
banks  of  the  Tyne  by  the  obstinate  defense  of  the  Castle 
of  Prudhoe,  Geoffry,  Bishop  of  Lincoln,  the  King's  son 
by  the  Fair  Rosamond,  collected  a  large  army  to  en- 
counter them.  At  his  approach  they  retreated  to  the 
north,  and  he,  thinking  that  they  had  recrossed  the 
Tweed,  marched  back  to  his  see,  singing  TE  DEUM,  and 
celebrating  very  boastfully  the  supposed  success  which 
he  had  gained.  The  King  of  Scots,  however,  took 
several  strong  castles  in  Northumberland,  which  had  at 
first  withstood  his  assault,  and  laid  siege  to  Alnwick 
with  his  regular  forces,  sending  skirmishing  parties  even 
beyond  the  Tyne  and  the  Tees  to  collect  provisions  and 
levy  contributions.  One  of  these,  commanded  by  Dun- 
can, Earl  of  Fife,  surprised  the  town  of  Warkworth, 
which  they  burned  to  the  ground,  massacring  all  the 
inhabitants  without  distinction  of  age  or  sex,  and  not 
sparing  even  those  who  had  taken  sanctuary  in  the 
churches  and  convents. 

Ranulfus  de  Glanville,  the  sheriff  of  Yorkshire,  hearing 
of  these  excesses,  without  waiting  for  orders  from  the 
government,  issued  a  proclamation  for  raising  the  posse 
comitatus,  and  all  classes  of  the  inhabitants  flocked 
eagerly  to  his  standard.  With  a  body  of  horse,  in  which 
were  about -four  hundred  knights,  after  a  hard  day's, 
march,  he  arrived  at  Newcastle.  There  he  was  told  that 
William  the  Lion,  instead  of  repressing,  encouraged  the 
devastation  committed  by  the  marauders,  and,  believing 
that  there  was  no  longer  any  army  to  face  him,  entirely 
neglected  all  the  usual  precautions  of  military  discipline. 
The  gallant  sheriff  resolved  to  push  forward  next  morn- 
ing, in  the  hope  of  relieving  Alnwick  and  surprising  the 
besiegers.  The  English  accordingly  began  their  march 
at  break  of  day,  and,  though  loaded  with  heavy  armor, 
in  five  hours  had  proceeded  nearly  thirty  miles  from 
Newcastle.  As  they  were  then  traversing  a  wild  heath 
among  the  Cheviot  Hills  they  were  enveloped  in  a  thick 


U74.J          RANULFUS  DE  GLANVILLE.  '  21 

fog,  and  the  advice  was  given  that  they  should  try  to 
find  their  way  back  to  Newcastle ;  but  Glanville,  rather 
than  stain  his  character  with  the  infamy  of  such  a  flight, 
resolved  to  proceed  at  all  hazards,  and  his  men  gallantly 
followed  him.  They  proceeded  some  miles  in  darkness, 
being  guided  by  a  mountain  stream,  which  they  thought 
must  conduct  them  to  the  level  country.  Suddenly  the 
mist  dispersed,  and  they  saw  before  them  in  near  view 
the  castle  of  Alnwick  beleaguered  by  straggling  bands  of 
Scots,  and  the  Scottish  King  amidst  a  small  troop  of 
horsemen  diverting  himself  with  the  exercises  of  chiv- 
alry, free  from  any  apprehensions  of  danger.  William 
at  first  mistook  the  Englishmen  for  a  party  of  his  own 
countrymen  returning  loaded  with  the  spoils  of  a  foray. 
Perceiving  his  error,  he  was  undismayed,  and,  calling 
out  "  Noo  it  will  be  seen  whilk  be  true  knichts"1  he  in- 
stantly charged  the  enemy.  In  a  few  minutes  he  was 
overpowered,  unhorsed,  and  made  prisoner.  Some  of 
his  nobles  coming  to  the  rescue,  and  finding  their  efforts 
ineffectual,  voluntarily  threw  themselves  into  the  hands 
of  the  English,  that  they  might  be  partakers  in  the 
calamity  of  their  sovereign.  Glanville,  prudently  con- 
sidering that  he  might  be  endangered  by  the  reassem- 
bling of  the  scattered  bands  of  the  Scots,  immediately  set 
off  with  his  prisoners  for  Newcastle,  and  arrived  there 
the  same  evening.  Thus  did  the  valiant  civilian  in  one 
day,  after  the  fatigue  of  a  long  march,  ride  at  the  head 
of  a  band  of  heavy  armed  horse  above  seventy  miles, 
charge  a  national  army,  and  make  captive  a  King  who 
had  threatened  to  carry  war  and  desolation  into  the  very 
heart  of  England.  Having  secured  his  royal  prize  in  the 
strong  castle  of  Richmond,  he  sent  off  a  messenger  to 
London  to  announce  his  victory. 

It  so  happened  that,  the  same  hour  at  which  William 
was  taken  at  Alnwick,  Henry  had  been  doing  penance  at 
the  tomb  of  St.  Thomas  of  Canterbury.2  Alarmed  by 

1  These  words  he  must  have  spoken  that  they  might  be  understood  by  his 
Lowland  common  soldiers.  Addressing  the  knights  themselves,  he  would 
have  spoken  in  French,  which  was  then  the  language  of  the  higher  orders  in 
Scotland  as  well  as  in  England. 

*  All  Europe  was  now  ringing  with  the  fame  of  his  miracles,  and,  by  a 
papal  bull  issued  the  year  before,  he  had  been  declared  a  Saint  and  a  Mar- 
tyr, an  anniversary  festival  being  appointed  on  the  day  of  his  death  "  in 


22  REIGN  OF HENR Y  II.  \\\ 74 

the  dangers  which  surrounded  him  from  domestic  and 
foreign  enemies,  and  dreading  that  he  had  offended 
Heaven  by  the  rash  words  he  had  spoken  which  led  to 
the  martyrdom  of  the  Archbishop,  he  had  thought  it 
necessary  to  visit  the  shrine  of  the  new  saint.  At  the 
r1'  -tance  of  three  miles,  discovering  the  towers  of  Can- 
t  rbury  Cathedral,  he.alighted  from  his  horse,  and  walked 
thither  barefoot,  over  a  road  covered  with  rough  and 
sharp  stones,  which  so  wounded  his  feet  that  in  many 
places  they  were  stained  with  his  blood.  His  bare  back 
was  then  scourged  at  his  own  request  by  all  the  monks 
of  the  convent,  and  he  continued  a  whole  day  and  night 
before  the  tomb,  kneeling  or  lying  prostrate  on  the  hard 
pavement,  employed  in  prayer,  and  without  tasting  nour- 
ishment. He  then  journeyed  on  to  Westminster ;  and 
he  was  lying  in  bed,  very  sick  from  the  penance  he  had 
undergone,  when,  in  the  dead  of  night,  a  messenger, 
stained  with  the  soil  of  many  counties,  arrived  at  the 
palace,  and,  declaring  that  he  was  the  bearer  of  import- 
ant despatches,  swore  that  he  must  see  the  King.  The 
warder  at  the  gate  and  the  page  at  the  door  of  the  bed- 
chamber in  vain  opposed  his  entrance,  and,  bursting  in, 
he  announced  himself  as  the  servant  of  Ranulfus  de  Glan- 
ville.  The  question  being  asked,  "  Is  all  well  with  your 
master?"  he  answered,  "All  is  well,  and  he  has  now  in 
his  custody  your  enemy  the  King  of  Scots."  "  Repeat 
those  words,"  cried  Henry,  in  a  transport  of  joy.  The 
messenger  repeated  them,  and  delivered  his  despatches. 
Henry,  having  read  them,  was  eager  to  communicate  the 
glad  tidings  to  his  courtiers,  and,  expressing  gratitude  to 
Ranulfus  de  Granville,  piously  remarked  that  "  the  glo- 
rious event  was  to  be  ascribed  to  a  higher  power,  for  it 
had  happened  while  he  was  recumbent  at  the  shrine  of 
St.  Thomas."1 

Glanville  was  ordered  forthwith  to  appear  with  his 
prisoner,  and  to  carry  him  to  Falaise  in  Normandy. 
Here  William  the  Lion  was  kept  in  strict  confinement, 
till  the  negotiation  was  concluded  by  which  he  was  un- 
order that,  being  continually  applied  to  by  the  prayers  of  the  faithful,  he 
should  intercede  with  God  for  the  clergy  and  the  people  of  England." 
*  Newb.  ii.  36.  Gervase,  1427.  Dalrymp.  Annals,  i.  129.  R.  Hoved.  529. 


ii8o.]  RANULFUS  DE  GLANVILLE.  23 

generously  compelled  to  acknowledge  himself  the  liege- 
man of  the  King  of  England. 

The  sheriff  was  immediately  promoted  to  be  one  of  the 
Justiciars  appointed  to  assist  the  great  officers  in  the 
AULA  REGIS,  and  to  go  iters  or  circuits  for  administering 
justice  periodically  in  different  parts  of  England.1  In 
this  new  capacity  he  showed  as  much  zeal  as  when  leader 
of  a  military  band,  and  the  only  fault  imputed  to  him 
was  that  he  sometimes  displayed  "  a  vigor  beyond  the 
law."  These  stretches  of  authority,  however,  were  jus- 
tified or  palliated  by  the  turbulence  of  the  times.  He 
now  possessed  the  entire  confidence  of  the  King,  and  he 
gradually  acquired  more  influence  than  any  other  minis- 
ter. . 

One  task  of  peculiar  delicacy  was  committed  to  him. 
Henry,  although  he  owed  so  much  to  his  wife,  proved  to 
her  the  worst  of  husbands ;  and  he  not  only  entertained 
the  Fair  Rosamond  and  other  mistresses,  but  he  actually 
shut  up  Eleanor  as  a  prisoner  in  the  castle  of  Winchester. 
The  government  of  this  fortress,  with  the  care  of  the 
royal  captive,  was  now  assigned  to  Glanville,  and  was 
continued  to  him  till  the  death  of  Henry,  after  a  lapse 
of  sixteen  years.  He  had  contrived,  however,  to  give 
satisfaction  to  both  parties,  for  the  King  praised  him  fof 
his  watchfulness  and  the  Queen  for  his  kindness.* 

As  a  reward  for  all  these  services,  Glanville  at  last 
gained  the  object  of  his  ambition,  and  was  installed  in 
the  office  of  Chief  Justiciar.  It  had  been  some  time  in 
commission,  the  commissioners  being  the  Bishops  of 
Winchester,  Norwich,  and  Ely ;  but  as  soon  as  the  Pope 
heard  of  their  appointment  he  wrote  to  say  that  "  it  was 
the  duty  of  pastors  to  feed  their  flocks,  not  to  act  the 
part  of  secular  magistrates,"  and  he  recalled  them  from 
the  courts  in  which  they  presided  to  the  care  of  the  dio- 
cese to  which  they  had  been  consecrated.  On  their  res- 
ignation, Ranulfus  de  Glanville,  with  universal  applause, 

1  There  seems  reason  to  think  that  he  was  one  of  a  court  appointed  to  r&- 
ceive  petitions  in  the  first  instance,  and  to  report  upon  them  to  the  Aula 
Regis.  After  the  mention  of  his  name  with  five  others,  there  is  the  follow- 
ing observation  in  Maddox : — "  Isti  sex  sunt  Justitise  in  curia  regis  constituti 
ad  audiendum  clamores  populi." 

•     *  See  the  authorities  collected  by  Miss  Strickland  in  her  excellent  Life  of 
Queen  Eleanor. 


«4  REIGN  OF  HENRY  II.  [1184, 

was  appointed  to  the  office  with  sole  and  undivided 
sway.1  He  is  the  first  who  filled  it  who  is  celebrated  for 
learning,  impartiality,  and  other  qualities  purely  judicial. 
Under  him  the  AULA  REGIS  deserved  the  praise  be- 
stowed upon  it  by  Peter  de  Blois  in  a  letter  to  the 
King: — "  If  causes,"  said  he,  "  are  tried  in  the  presence 
of  your  Highness  or  your  Chief  Justiciar,  then  neither 
gifts  nor  partiality  are  admitted ;  there  all  things  pro- 
ceed according  to  the  rules  of  judgment  and  justice  ;  nor 
does  ever  the  sentence  or  decree  transgress  the  limits  of 
equity.  But  the  great  men  of  your  kingdom,  though 
full  of  enmity  against  each  other,  unite  to  prevent  the 
complaints  of  the  people  against  the  exactions  of  sheriffs, 
or  other  officers  in  any  inferior  jurisdictions,  whom  they 
have  recommended  and  patronize,  from  coming  to  your 
royal  ears.  The  combination  of  these  magnates  can 
only  be  truly  compared  to  the  conjunction  of  scales  on 
the  back  of  the  Behemoth  of  the  Scriptures,  which  fold 
over  each  other,  and  form  by  their  closeness  an  impen- 
etrable defense.* 

Yet  my  Lord  Chief  Justiciar  Glanville  himself  did  not 
escape  calumny.  The  story  was  circulated  against  him, 
and  is  recorded  by  a  contemporary  historian,  that,  to  get 
possession  of  the  wife  of  Gilbert  de  Plumpton,  he 
brought  a  false  charge  of  rape  against  that  potent  Baron 
before  the  AULA  REGIS,  sitting  at  Worcester,  and  sen- 
tenced him  to  be  hanged  ;  but  that  the  King,  taking  pity 
upon  the  prisoner,  and  knowing  the  motive  for  the  pros- 
ecution, spared  his  life,  and  commuted  the  sentence  to 
perpetual  imprisonment.8  This  is  probably  a  scandalous 
perversion  of  the  truth  by  an  enemy  ;  for  we  have  every 
reason  to  believe  that  the  Chief  Justiciar  was  a  man  of 
pure  morals  and  honorable  principles ;  and  it  is  incred- 
ible that  Henry,  who  was  renowned  for  his  love  of  jus- 

1  Diceto,  606.     R.  Hoved.  337.  *  Epistle  95.  ad  Hen.  Regem. 

8  A.  D.  1184.  "  Eodem  anno  cum  Gilbertus  de  Plumtun  Miles  nobili 
prosapia  ortus  ductus  esset  in  vinculis  usque  Wigorniam,  et  accusatus  esset 
de  raptu  coram  Domino  Rege  a  Ranulfo  de  Glanvilla  Justiciario  Angliae, 
qui  eum  condemnare  volebat,  injusto  judicio  judicatus  est  suspendi  in  pati- 
bulo.  Rex  pietate  commotus  przecepit  custoditum  manere  ;  sciebat  enim 
quod  per  invidiam  fecerat  hoec  illi  Ranulfus  de  Glanvilla,  qui  eum  morti 
tradere  volebat  propter  uxorem  suam.  Sic  itaque  Miles  ille  a  morte  liber- 
ntus  usque  ad  obitum  Regis  fuit  incarceratus." — A'.  Hoved.  vol.  ii.  p.  622,  623. 


n88.]          RANULFUS  DE   GLANVILLE.  25 

tice,  should  have  continued  to  employ,  in  a  post  of  high 
power  and  trust,  one  whom  he  had  detected  in  attempt- 
ing such  an  enormity.  We  need  not  doubt  that  the 
punishment  was  mitigated  on  account  of  some  extenu- 
ating circumstances, — which  might  have  been  brought 
to  the  King's  notice  by  the  Judge  himself. 

Glanville  continued  to  fill  the  office  of  Chief  Justiciar 
for  five  years  longer ;  and  his  judicial  reputation  still 
went  on  increasing.  He  now  composed  and  published 
in  Latin,  "  A  Treatise  on  the  Laws  and  Customs  of 
the  Kingdom  of  England,"  which  on  some  points  is  still 
of  authority,  and  which  may  be  perused  with  advantage 
by  all  who  take  an  interest  in  our  legal  antiquities.  This 
author  is  to  be  considered  the  father  of  English  juris- 
prudence. Bracton,  who  wrote  in  the  following  century, 
is  more  methodical  and  elegant,  but  he  draws  largely 
from  the  Roman  civil  law,  and  is  sometimes  rather  spec- 
ulative ;  while  Glanville  actually  details  to  us  the  prac- 
tice of  the  AULA  REGIS,  in  which  he  presided, — furnishes 
us  with  a  copious  supply  of  precedents  of  writs,1  and 
other  procedure  then  in  use, — and  explains  with  much 
precision  the  distinctions  and  subtleties  of  the  system 
which,  in  the  fifth  Norman  reign,  had  nearly  superseded 
the  simple  juridical  institutions  of  our  Anglo-Saxon  an- 
cestors. The  general  reader  may  be  amused  by  a  trans- 
lation of  his  PREFACE  : — 

"  The  Majesty  of  the  King  should  not  merely  be  sup- 
ported with  arms  to  restrain  rebels  and  to  repel  foreign 
invaders,  but  ought  likewise  to  be  adorned  with  laws 
for  the  peaceful  government  of  the  people.2  May  our 
most  illustrious  Sovereign  conduct  himself  with  such 
felicity  both  in  peace  and  in  war, — by  the  force  of  his 
right  hand  crushing  the  insolence  of  the  proud  and  the 
violent,  and  with  the  scepter  of  equity  moderating  his 
justice  to  the  humble  and  obedient, — so  that,  as  he  may 
be  always  victorious  over  his  enemies,  so  he  may  on  all 
occasions  show  himself  impartially  just  in  the  govern- 
ment of  his  subjects! 

1  It  is  curious  to  observe  that  his  "  Precipe  quod  reddat "  and  various 
other  writs,  are  precisely  the  same  as  those  used  in  the  reign  of  William  IV. 
when  real  actions  were  abolished. 

*  This  commencement  is  imitated  by  Bracton,  Fleta,  and  the  Scottish 
"  REGIAM  MAGISTRATUM." 


26  REIGN   OF  HENRY  II.  [1188. 

"  How  vigorously,  how  skillfully,  how  gracefully  our 
most  excellent  King  has  conducted  his  arms  and  baffled 
his  foes  is  manifest  to  all,  since  his  fame  has  now  spread 
over  the  whole  world,  and  his  splendid  actions  have 
reached  even  the  extremities  of  the  globe.  How  justly, 
how  discreetly,  and  how  mercifully  he  who  loves  peace, 
and  is  the  author  of  it,  has  conducted  himself  towards 
his  subjects  is  evident,  since  the  Court  of  his  Highness  is 
regulated  with  so  strict  a  regard  to  equity,  that  none  of 
the  judges  have  so  hardened  a  front  or  so  rash  a  pre- 
sumption as  to  dare  to  deviate,  however  slightly,  from 
the  path  of  justice,  or  to  utter  a  sentence  in  any  measure 
contrary  to  truth.1  Here,  indeed,  no  poor  man  is  op- 
pressed by  the  power  of  his  adversary,  and  the  balance 
of  justice  is  not  swayed  by  love  or  by  hatred.  Every 
decision  is  governed  by  the  laws  of  the  realm,  and  by 
those  customs  which,  founded  on  reason  in  their  origin, 
have  for  a  long  time  been  established.  What  is  still 
more  laudable,  our  King  disdains  not  to  avail  himself  of 
the  advice  of  such  men  (although  his  subjects)  who,  in 
gravity  of  manners,  in  familiarity  with  the  laws  and  cus- 
toms of  the  realm,  in  wisdom  and  in  eloquence,  are 
known  to  surpass  others,  and  whom  he  has  found  by  ex- 
perience to  use  most  despatch  (as  far  as  is  consistent  with 
reason)  in  the  administration  of  justice,  by  deciding  diffi- 
cult questions  and  ending  suits  ;  acting  now  with  more 
severity,  now  with  more  lenity,  as  they  see  most  expe- 
dient.' 

"•The  English  laws,  although  not  written,  may,  with- 
out impropriety,  be  termed  laws.  Indeed,  we  adopt  the 
maxim,  '  That  which  pleases  the  prince  has  the  force  of 
law.'*  But  I  refer  more  particularly  to  those  laws  which 
evidently  were  promulgated  by  the  advice  of  the  nobles 
and  the  authority  of  the  prince.  If  from  the  mere  want 
of  writing  only  they  should  not  be  considered  as  laws, 
then,  indeed,  writing  would  seem  to  confer  more  author- 
ity upon  laws  than  either  the  authority  of  those  framing 

1  The  writer  seems  not  to  have  suspected  the  scandalous  tales  spread 
abroad  respecting  himself  and  Sir  Gilbert  and  Lady  Plumpton. 

*  This  is  said  to  afford  proof  that  our  system  of  equitable  jurisprudence  is 
to  be  traced  to  the  Aula  Regis. 

1  Justin.  Inst.  li.  t.  2.  s.  6. 


uS8  J  RANULFUS  DE  GLANVILLE.  27 

them,  or  the   equitable  principles   on  which   they  are 
framed. 

"To  reduce  in  every  instance  the  laws  and  constitu 
tiun  of  this  realm  into  writing  would  in  our  times  be 
absolutely  impossible,  as  well  on  account  of  the  ignor- 
ance of  writers  as  of  the  confused  multiplicity  of  enact- 
ments. But  there  are  some  well  established  rules,  which, 
as  they  more  frequently  arise  in  court,  it  appears  to  me 
not  presumptuous  to  put  into  writing,  to  assist  the  mem- 
ory and  for  general  reference.  A  certain  portion  of 
these  I  mean  to  submit  to  the  reader  in  the  following 
work,  purposely  making  use  of  a  familiar  style,  and  of 
words  which  occur  in  legal  proceedings.  My  object  has 
been  not  only  to  instruct  the  professional  lawyer,  but 
such  as  are  less  accustomed  to  technical  learning.  For 
the  sake  of  perspicuity  I  have  divided  the  present  work 
into  BOOKS  and  CHAPTERS."1 

As  a  specimen  I  may  give  the  proceedings  in  a  suit  for 
land, — leading  either  to  "  Trial  by  Battle,"  or  the  "  Grand 
Assize  :" 

"  After  three  reasonable  essoins,  which  accompany  the 
view  of  the  land,  both  parties  being  again  present  in 
court,  the  demandant  shall  claim  in  this  manner  : — '  I  de- 
mand against  this  H.  half  a  Knight's  fee,  or  two  plow- 
lands,  in  such  a  vill,  as  my  right  and  inheritance,  of 
which  my  father  was  seized  in  his  demesne  as  of  fee,  in 
the  time  of  King  Henry  I.,  and  from  which  he  took  the 
profits  to  the  value  of  $s.  at  least,  in  corn,  hay,  and  other 

? reduce  ;  and  this  I  am  ready  to  prove  by  my  freeman, 
,  to  whom  his  father,  when  on  his  death-bed,  enjoined, 
by  the  faith  which  a  son  owes  to  his  father,  that  if  he 
ever  heard  a  claim  concerning  that  land,  he  should  prove 
this  as  that  which  his  father  saw  and  heard.' 

"  The  demand  being  thus  made,  it  shall  be  at  the  elec- 

1  Lord  Coke  says,  "  Ranulphus  de  Glanvilla,  in  the  reign  of  King  Henry 
II.,  learnedly  and  profoundly  wrote  of  part  of  the  laws  of  England  (whose 
works  remain  extant  at  this  day) ;  and  in  the  Preface  he  writeth  that  the 
King  did  govern  this  realm  by  the  laws  of  this  kingdom,  and  by  customs 
founded  upon  reason  and  of  ancient  time  obtained.  By  which  words, 
spoken  so  many  hundred  years  since,  it  appeareth  that  then  there  were  latts 
and  customs  of  this  kingdom,  grounded  upon  reason  and  of  ancient  time 
obtained,  which  he  neither  could  nor  would  have  affirmed  if  they  had  been 
so  recently  and  almost  presently  before  that  time  instituted  by  the  Con- 
queror."— Preface  to  the  8th  Rep,  xviii. 


28  REIGN  OF  HENRY  II.  [1188. 

tion  of  the  tenant  either  to  defend  himself  by  the  Duel, 
or  to  put  -himself  upon  the  King's  Grand  Assize,  and  re- 
quire a  recognition  '  which  of  the  two  has  the  greater 
right  to  the  land  in  dispute  ?'  But  here  we  would  ob- 
serve, that  after  the  tenant  has  once  waged  the  Duel,  he 
must  abide  by  his  choice,  and  cannot  afterwards  put 
himself  upon  the  Assize. 

"  In  the  Duel,  the  tenant  may  defend  himself  either 
in  his  own  person  if  he  choose  so  to  do,  or  by  any  other 
unobjectionable  witness  as  his  champion.  But  it  fre- 
quently happens  that  a  hired  champion  is  produced  in 
court,  who,  for  reward,  has  undertaken  the  proof.  If 
the  adverse  party  should  except  to  such  a  champion, 
alleging  him  to  be  an  improper  witness,  from  having  ac- 
cepted a  reward,  and  that  he  is  ready  to  prove  this  accu- 
sation against  the  champion,  this  matter  shall  be  tried, 
and  the  principal  duel  shall  be  deferred.  If  upon  this 
charge  the  champion  or  the  demandant  should  be  con- 
victed and  conquered  in  the  duel,  then  his  principal  shall 
lose  the  suit,  and  the  champion  shall  never  from  thence- 
forth be  admitted  in  court  as  a  witness  for  the  purpose 
of  making  proof  by  duel  for  any  other  person.  But, 
with  respect  to  himself,  he  may  be  admitted  either  in 
defending  his  own  body,  or  in  prosecuting  any  atrocious 
personal  injury,  as  being  a  violation  of  the  King's  peace  ; 
and  he  may  also  defend  by  duel  his  right  to  his  own  fee 
and  inheritance." 

The  proceedings  are  described  till  at  last  we  come  to 
the  writ  of  possession  : — 

"The  King  to  the  Sheriff  of .greeting:  I  com- 
mand you  that  without  delay  you  give  possession  to  M. 
of  half  a  knight's  fee  in  the  vill  of-  — ,  in  your  baili- 
wick, concerning  which  there  was  a  suit  between  him 
and  H.  in  my  court,  because  such  land  is  adjudged  to 
him  in  my  court  by  the  duel.  Witness,"  &c.' 

I  add  the  mode  of  proceeding  in  cases  of  treason  : — 

"  When  any  one  is  charged  with  the  King's  death,  or 
with  having  raised  a  sedition  in  the  realm  or  in  the 
army,  either  a  certain  accuser  appears,  or  not.  If  the 
public  voice  alone  accuses  him,  he  shall  be  required  to 
give  bail,  or  he  shall  be  imprisoned.  The  truth  of  the 

1  B.  ii.  ch.  L — iv. 


ii8S.]          RANULFUS  DE  GLANVILLE.  29 

charge  shall  then  be  inquired  into  in  the  presence  of  the 
Justices,  who  weigh  each  conjecture  that  makes  for,  or 
against,  him.  If  on  the  trial  by  the  ordeal  a  person  is 
convicted  of  a  capital  crime  the  judgment  is  of  life  and 
members,  which  are  at  the  King's  mercy. 

"  Should,  however,  a  certain  accuser  appear,  and  give 
security  to  prosecute  his  plea  and  propound  his  charge, 
— that  he  had  seen,  or  by  other  evidence  could  prove  in 
court,  the  accused  guilty  of  having  conspired  against  the 
King's  life,  or  having  raised  a  sedition  in  the  realm  or  in 
the  army,  and  the  accused  on  the  other  hand  deny  every 
thing  the  other  had  asserted,  it  is  usual  to  decide  the 
plea  by  the  Duel.  And  here  it  should  be  observed,  that 
from  the  moment  the  duel  is  waged  neither  party  can 
add  or  diminish  any  thing  from  the  words  employed  in 
waging  the  duel,  or  in  any  other  measure  decline  or  re- 
cede from  his  undertaking,  without  being  held  as  con- 
quered, and  liable  to  the  penal  consequences  of  defeat. 
Nor  can  the  parties  be  afterwards  reconciled  to  each 
other  by  any  other  mode  than  the  King's  license  or  that 
of  his  justices."1 

It  is  said  that  Glanville  drew  up  this  compendium  of 
the  laws  of  England  for  the  public  use  by  the  command 
of  Henry  II.11  It  remained  in  MS.  till  the  year  1554, 
when  it  was  first  printed  at  the  instance  of  Sir  William 
Stanford,  a  grave  and  learned  judge  of  the  Court  of 
Common  Pleas.*  Its  merits  have  been  very  generally 
acknowledged.  Dr.  Robertson,  in  his  observations  upon 
the  early  part  of  the  I2th  century,  says,  "that  in  no 
country  of  Europe  was  there  at  that  time  any  collection 
of  customs,  nor  had  any  attempt  been  made  to  render 
law  fixed  :  the  first  undertaking  of  that  kind  was  by 
Glanville,  Lord  Chief  Justice  of  England,  in  his  Tractus 
de  Legibus  et  Consuetudinibus,  composed  about  the  year 
1189.'"  Lord  Coke  thus  assigns  the  reason  for  giving  a 

1  Book  xiv.  c.  1.  The  most  recent  instance  we  have  of  a  duel  of  this  sort 
is  that  between  Henry  of  Bolingbroke  and  Thomas  Mowbray,  Duke  of 
Norfolk,  which  is  very  graphically  described  in  the  first  act  of  Shakespeare's 
play  of  Richard  II. 

*  Madd.  Exch.  123.  z  4  Inst.  345.  n. 

4  Charles  V.  vol.  i.  p.  296.  The  historian,  however,  seems  to  have  over- 
looked the  "  Assizes  of  Jerusalem,"  composed  in  1099 ;  highly  valued  by 
Lord  Loughborough  and  by  Gibbon. 


30  REIGN  OF  HENR  Y  II.  [i  iSS. 

valuable  sketch  of  Glanville's  life, — "  in  token  of  my 
thankfulness  to  that  worthy  Judge  for  the  fruit  which  I 
confess  myself  to  have  reaped  out  of  the  fair  fields  of  his 
labors.  I  will,  for  the  honor  of  him,  and  of  his  name, 
and  posterity  which  remain  to  this  day,  impart  and  pub- 
lish, to  all  future  and  succeeding  ages,  what  I  have 
found  of  great  antiquity  and  of  undoubted  verity."1 

Some,  I  am  well  aware,  have  lately  attempted  to  de- 
prive Glanville  of  the  honor  of  the  authorship  of  the 
treatise  which  had  so  long  passed  under  his  name ;  but, 
in  suggesting  that  it  must  have  been  written  by  an  ec- 
clesiastic employed  by  him,  they  appear  to  have  little 
other  reason  beyond  the  assumed  incompetency  of  one 
who  was  a  layman  and  a  warrior  to  write  it ;  and  they 
forget  the  manners  of  the  age  when  they  object  to  a 
grave  and  learned  judge  throwing  off  his  robes  and  lay- 
ing aside  his  pen,  to  put  on  a  coat  of  mail  and  to  grasp 
a  spear.* 

Glanville  continued  with  energy  to  exercise  the  func- 
tions of  his  office  in  preserving  the  peace  of  the  king- 
dom, as  well  as  in  presiding  in  the  AULA  REGIS.  In 
the  year  1181,  the  Welsh,  during  the  King's  absence  in 
Normandy,  having  made  an  incursion  into  England,  and 

1 "  Ne  reverendissimo  illi  judici  videar  ingratus  pro  fructu  quern  ex  pul- 
cherrimis  ejus  operum  arvis  me  colegisse  confiteor,  in  honorem  ejus,  et 
nominis,  et  nobilis  hodie  florentis,  in  secula  futura  emittere,  et  in  medium 
proferri,  visum  est,  quae  magnse  fore  vetustatis  et  exploratse  veritatis  sae- 
pissime  sum  expertus." — Preface  to  8th  Rep.  xviii. 

Spelman  says,  "  Hie  cum  ad  suam  usque  setatem  (instar  rhetrarum  Ly- 
curgi)  aypatfof  id  est  non  scripta  mansisset,  maxima  pars  juris  nostri ;  omnium 
primus  fyypafyav  reddere  aggressus  est,  composito  illius  argumenti  libro  quo- 
dam,  cui  in  antiquis  MSS.  isle  titulus  Tractatus  de  legibus  et  censuetudinibus 
Regni  Anglia:,  tempore  Regis  Henrici  II.  compositus,  justitia  gubernacula 
tenente  illtistri  viro  Ranulpho  de  Glanvilla,  Juris  Regni  et  Antiquarum  con- 
suetndinum  to  tempore  peritis  si  mo" — Gloss,  p.  338. 

9  The  objection  hardly  deserves  notice,  which  arises  from  the  title-page  in 
the  most  ancient  MS.  copy  of  the  work,  saying,  that  it  was  written  in  the 
time  of  Henry  II.,  "  the  illustrious  Ranulph  de  Glanville,  who,  of  all  in 
those  days,  was  the  most  skilled  in  the  law  and  ancient  customs  of  the 
realm,  then  holding  the  helm  of  justice."  It  is  truly  observed  that  he 
would  not  thus  have  praised  himself,  but  the  title-page  is  evidently  the 
composition  of  a  later  age.  Hoveden  evidently  considered  Glanville  the 
author  of  the  book  which  goes  by  his  name,  and  probably  thought  that  the 
learning  and  ability  which  it  displays  contributed  to  his  elevation, — thus 
narrating  his  appointment  as  Chief  Justiciar: — "  Henricus  Rex  Angiiae 
pater,  constituit  Ranulphum  de  Glanvilla  suum  Justiciarium  totius  Angliae 
cujus  sapientia  conditse  sunt  leges  subscripts  quas  Anglicanas  vocairas." 


u86.J  RAtfULFUS  DE  GLANVILLE.  31 

killed  Ranulfus  de  Poer,  Sheriff  of  Gloucestershire,  the 
Chief  Justiciar,  as  guardian  of  the  realm,  drew  together 
an  army,  marched  against  the  mountaineers,  and  drove 
them  back  to  the  woods  and  fastnesses  of  their  own 
country.1  A  partisan  warfare  was  kept  up  between  the 
two  nations  for  some  years,  till  at  last  Glanville  was  sent 
by  Henry  to  treat  with  Rees  ap  Gryffith,  and  the  other 
chiefs  of  South  Wales,  not  only  for  the  purpose  of  fin- 
ishing the  war,  and  bringing  back  those  who  were  called 
rebels  to  their  fealty,  but  likewise  for  retaining  a  body 
of  their  foot  to  serve  in  the  English  army  against  Philip, 
King  of  France.  Glanville's  mission  was  in  all  respects 
most  successful.  He  perceived,  as  Lord  Chatham  did 
with  respect  to  the  Scotch  Highlanders  six  centuries 
afterwards,  that  the  best  way  of  preventing  them  from 
annoying  England  was  to  employ  them  against  for- 
eigners, and  that  they  would  be  faithful  in  proportion  as 
they  themselves  were  trusted.  The  Welsh  very  readily 
agreed  to  keep  within  their  ancient  boundaries,  and  to 
acknowledge  Henry  as  their  sovereign  liege  lord  ;  they 
furnished  a  body  of  auxiliaries,  who  served  with  high 
reputation  against  his  enemies  on  the  continent ;  and  a 
basis  of  conciliation  was  established, .which  subsisted  till 
Edward  I.  determined  to  crush  the  Princes  of  Wales, 
and  to  bring  the  whole  principality  under  his  own  im- 
mediate rule.* 

As  an  acknowledgment  of  Glanville's  services,  civil 
and  military,  there  was  now  conferred  upon  him  the  ad- 
ditional dignity  of  Dapifer." 

The  only  other  important  affair,  during  the  present 
reign,  in  which  the  Chief  Justiciar  is  stated  to  have  been 
concerned,  was  a  dispute  between  the  King  and  the 
monks  of  Canterbury.  As  they  collected  immense  riches 
from  the  miracles  of  St.  Thomas,  Henr,y  had  attempted 
to  establish  a  rival  foundation  near  this  city ;  and,  that 
they  might  preserve  their  monopoly,  they  prevailed  on 
Pope  Urban  III.  to  send  him  an  apostolical  mandate, 
ordering  him  to  put  a  stop  to  the  building. 

Supported  by  the  present  Archbishop  of  Canterbury, 
much  more  obsequious  than  his  sainted  predecessor,  he 

1  Benedict.  Abbas,  ad.  ann.  1181. 

1  Benedict.  Abbas,  ad.  ann.  1185,  1186.  *  Madd.  Exch.  i.  24. 


32  REIGN  OF  HENRY  II.  [1186. 

disregarded  the  mandate,  and  was  more  eager  than  ever 
to  mortify  the  monks.  His  Holiness  thereupon  ap- 
pointed the  abbots  of  Battle,  Feversham,  and  St.  Au- 
gustine to  enforce  the  execution  of  the  mandate.  They, 
holding  an  ecclesiastical  court  under  the  Pope's  author- 
ity, were  about  to  issue  process  against  all  connected 
with  the  new  foundation,  when  Glanville,  as  Chief  Jus- 
ticiar,  issued  a  writ  of  prohibition,  which  is  still  extant, 
in  the  following  form  : — 

"  R.  de  Glanville,  &c.,  to  the  Abbot  of  Battle,  greet- 
ing: I  command  you  on  behalf  of  our  Lord  the  King, 
by  the  allegiance  which  you  owe  him,  and  by  the  oath 
which  you  have  sworn  to  him,  that  you  by  no  means 
proceed  in  a  suit  between  the  Monks  of  Canterbury  and 
the  Lord  Archbishop  of  that  See,  until  you  shall  have 
answer  made  to  me  thereupon ;  and,  all  delay  and  ex- 
cuses being  laid  aside,  that  you  appear  before  me  in 
London,  on  Saturday  next  after  the  Feast  of  St.  Mar- 
garet the  Virgin,  there  to  make  answer  in  the  premises. 
Witness,"  &C.1 

The  suit  being  spun  out  for  some  years,  and  Clement, 
a  new  Pope,  vigorously  taking  up  the  cause  of  the 
monks,  Glanville  attempted  to  bring  about  an  amicable 
settlement  of  the  difference,  and  toqk  a  journey  to  Can- 
terbury, that  upon  the  spot  he  might  negotiate  with 
better  effect.  The  subprior  said  that  he  and  his  brethren 
much  desired  the  King's  mercy. — Glanville,  C.  J.  "You 
yourselves  will  have  no  mercy ;  but,  from  your  attach- 
ment to  the  Court  of  Rome,  refuse  to  submit  to  the  ad- 
vice of  your  sovereign  or  of  any  other  person." — Subprior. 
"  Saving  the  interests  of  our  monastery,  and  the  rights 
of  the  Church,  we  are  ready  to  submit  to  the  King ;  but 
we  are  greatly  deterred  from  implicitly  trusting  to  the 
King,  by  reason  that  he  has  suffered  us  to  remain  during 
almost  two  years  deprived  of  all  our  possessions,  and  in 
a.  measure  imprisoned  within  our  walls." — Glanville,  C.  J. 
"  If  you  doubt  the  King,  there  are  bishops  and  abbots 
of  your  order,  and  there  are  barons  and  churchmen  be- 
longing to  the  court,  who,  should  you  trust  your  cause  to 

1  Appendix  to  Litt.  Hist.  H.  II.  vol.  vi.  427.  It  is  supposed  that  there 
was  a  similar  writ  to  each  of  the  other  two  legates,  but  this  is  the  only  one 
extant 


w 


1 1 88.]  RANULFUS  DE  GLANVILLE.  33 

them,  would  certainly  do  you  justice." — Subprior.  "All 
these  you  mention  are  so  partial  on  the  side  of  the  arch- 
bishop, so  complaisant  to  the  King,  and  so  unfriendly  to 
us,  that  we  do  not  venture  to  confide  in  their  arbitra- 
tion."— Glanville,  C.  j.  (hasting  away  with  much  indig- 
nation). "You  monks  turn  your  eyes  to  Rome  alone; 
and  Rome  will  one  day  destroy  you  !" — This  controversy 
was  at  last  compromised,  and  there  was  religious  peace 
in  the  country  during  the  remainder  of  the  reign  of 
Henry  II. 

The  passions  of  men  were  now  absorbed  in  the  new 
Crusade.  Europe  had  been  thrown  into  a  state  of  con- 
sternation and  alarm  by  the  intelligence  that  Saladin 
had  taken  Jerusalem,  and  that  nearly  all  the  conquests 
of  the  first  crusaders  had  been  recovered  by  the  infidels. 
A  parliament  being  held  on  the  3<Dth  of  January,  in  the 
year  1189,  the  Archbishop  of  Canterbury,  "by  the  au- 
thority of  God,  of  the  blessed  apostles  Peter  and  Paul, 
and  of  the  Chief  Pontiff,  denounced  excommunication 
against  all  persons  who  for  seven  years  should  begin  or 
foment  any  war  among  Christians  ;  and  declared  a  ple- 
nary absolution  from  all  sins  to  all  persons,  whether 
ecclesiastics  or  laymen,  who  should  take  the  cross." 
The  same  day  the  primate,  and  his  vicar  the  Bishop  of 
Rochester  preached  before  the  King  and  Parliament  on 
the  mystery  of  the  Cross ;  and,  pointing  out  the  sin  and 
shame  imputable  to  all  who  professed  to  be  disciples  of 
Jesus,  from  his  sepulchre  being  left  in  the  hands  of  be- 
lievers in  the  false  prophet  Mahomet,  exhorted  men  of 
all  degrees,  from  the  King  on  his  throne  to  the  meanest 
of  his  subjects,  forthwith  to  join  the  gallant  and  pious 
bands  who  were  marching  for  the  East,  and,  by  assisting 
in  the  great  enterprise,  to  insure  to  themselves  bright 
glory  in  this  world,  and  eternal  salvation  in  the  next. 
The  King  expressed  his  determination  to  march  for  Pal- 
estine as  soon  as  the  affairs  of  state  in  which  he  was 
engaged  would  permit.  But  what  was  the  astonishment 
of  all  present,  when  the  Chief  Justiciar,  Ranulfus  de 
Glanville — known  to  be  vigorous  and  energetic,  but  not 
suspected  of  enthusiasm,  now  well  stricken  in  years, 
who  had  spent  the  best  part  of  his  life  in  studying  the 
law  and  administering  justice,  who  had  a  wife  and  many 


34  REIGN   OF  RICHARD  I.  [1189. 

children  and  grandchildren  the  objects  of  his  tender  at- 
tachment— rose  up  as  soon  as  the  King  had  concluded 
his  speech,  and,  asking  the  Archbishop  to  invest  him 
with  the  cross,  was  enlisted  as  a  crusader  with  all  the 
vows  and  rites  used  on  such  a  solemn  occasion. 

So  much  in  earnest  was  he,  that  he  wished  forthwith 
to  set  forward  for  the  Holy  Land.  From  the  accu- 
mulated profits  of  his  office,  he  was  abundantly  able  to 
equip  himself  and  the  knights  whom  he  meant  to  take  in 
his  train,  without  following  the  general  example  of 
selling  or  mortgaging  his  lands.  But  the  young  princes 
engaged  in  another  unnatural  rebellion,  and  the  King 
laid  his  commands  on  the  Chief  Justiciar  to  delay  his 
journey  till  tranquillity  should  be  restored.  Before  this 
consummation,  the  unhappy  Henry  expired  at  Chinon 
of  a  broken  heart. 

Glanville  was  present  at  the  scene  when,  on  the  ap- 
proach of  Richard,  blood  gushed  from  the  dead  body,  in 
token,  according  to  the  superstition  of  the  age,  that  the 
son  had  been  the  murderer  of  the  father.  The  new 
monarch,  now  stung  with  remorse,  renounced  all  the 
late  companions  of  his  youth  who  had  misled  him,  and 
offered  to  confirm  all  his  father's  councillors  in  their 
offices.  This  offer  was  firmly  refused  by  Glanville,  who 
had  serious  misgivings  as  to  the  sincerity  of  Richard, 
and  who,  now  wearing  the  cross,  was  bound  by  his  vow, 
as  well  as  incited  by  his  inclination,  to  set  forward  for  the 
recovery  of  Jerusalem.  However,  he  discharged  the 
duties  of  the  office  for  some  weeks,  till  a  successor  might 
be  appointed  ;  and  he  attended,  with  the  rank  of  Chief 
Justiciar,  at  Richard's  coronation — when  he  exerted  him- 
self to  the  utmost  to  restrain  the  people  from  the  mas- 
sacre of  the  Jews,  which  disgraced  that  solemnity. 

Some  authors  represent  that  he  was  deprived  of  his 
office  at  the  death  of  Henry  II.,  and  obliged  to  pay  a 
heavy  fine  for  imputed  judicial  delinquency ;  but  there 
is  no  foundation  for  the  story,  beyond  his  voluntarily 
contributing  a  sum  of  money  towards  the  equipment  of 
the  army  now  embarking  for  Palestine.  He  was  treated 
with  the  greatest  favor  not  only  by  the  new  King,  but 
by  Eleanor  the  Queen  Mother,  who  had  long  been  his 


1 1 9o.]  RANULFUS- DE  GLANVILLE.  35 

prisoner,  and  who,  being  now  set  at  liberty,  was  destined 
to  be  Regent  of  the  kingdom.1 

Richard  himself  had  taken  the  cross,  and  was  prepar- 
ing for  that  glorious  expedition  in  which,  by  his  un- 
rivaled gallantry,  he  acquired  his  appellation  of  "  the 
Lion-hearted."  He  therefore  asked  Glanville  to  accom- 
pany him,  and  to  fight  under  his  banner.  But  such  was 
the  impatience  of  the  Chief  Justiciar  to  tilt  with  a  Sar- 
acen, that  he  declined  the  offer,  and  joined  a  band  of 
Norman  knights,  who  were  to  march  through  France 
and  to  take  ship  at  Marseilles  for  Syria. 

Unfortunately,  no  farther  account  has  come  down  to 
us  of  his  journey ;  and  we  read  no  more  of  him,  except 
that  in  the  following  year  he  was  killed,  fighting  val- 
iantly at  the  siege  of  Acre.3 

Of  Glanville's  numerous  offspring,  only  three  daugh- 
ters survived  him.  They  were  married  to  great  nobles ; 

1  Richard  of  Devizes  says,  "  Ranulfus  de  Glanvilla,  regni  Anglorum  rec- 
tor et  regis  oculus,  depostatus  et  custodiaa  traditus,  ire  saltern  sibi  liberum  et 
redire  redemit  quindecim  mille  libris  argenti,  et  cum  hoc  nomen  Glanvilla 
tanta  fuisset  die  przeterito,  nomen  scilicet  super  omne  nomen,  ut  quisque, 
cui  concessum  esset  a  Domino,  loqueretur  inter  principes  et  adoraretur  a 
populo,  proximo  mane  non  superfuit  unus  in  terra  qui  vocaretur  hoc  nomine. 
Ranulfus  de  Glanvilla,  quo  multus  fuerat  suo  tempore  desertior  dum  prae- 
potuit,  privatus  jam  factus  ex  principa,  in  tantum  hebuit  prse  dolore,  ut 
gener  ejus  Radulfus  de  Ardenna  ejusdem  oris  ratione  deperderet  quicquid 
oris  ejus  judicio  fuerat  consecutus."  (pp.  7,  8.)  But  this  chronicler,  like 
some  of  his  successors,  is  much  given  to  exaggeration,  and  sacrifices  ac- 
curacy for  effect. — See  Hoveden,  iii.  20-35. 

*  Richard  of  Devizes,  after  stating  that  Baldwin,  Archbishop  of  Canter- 
bury, and  Ranulf  de  Glanville,  with  others,  had  been  sent  forward  by  the 
Kings  of  France  and  England  with  a  powerful  army,  adds,  "  ex  quibus 
Baldewinus  archepiscopus  et  Ranulfus  de  Glanvilla  obierunt  in  obsidione 
civitatis,  quam  Latini  Acras,  Judaei  Accaran  dicunt,  dum  ad  hue  reges  in 
Sicilia  morarentur." — Ricardus  Divisiensis,  de  Rebus  gestis  Ricardi  Primi, 
p.  19. 

In  Stowell  v.  Lord  Zouch,  Plowden  368,  b.,  where  Catline,  C.  J.,  in  citing 
the  authority  of  his  great  predecessor,  says,  "  Glanville  was  a  judge  of  this 
realm  a  long  time  ago,  for  he  died  in  the  time  of  King  Richard  I.  at  the 
city  of  Acres  in  the  borders  of  Jury." 

Lord  Coke  merely  says,  "  Provectiori  setate  ad  Terrain  Sanctam  propera- 
vit,  et  ibidem  contra  inimicos  crucis  Christ!  strenuissime  usque  ad  necem 
dimicavit." — Preface  to  8th  Rep.  xviii. 

Spelman  says,  "  Exutus  autem  est  officio  Justitiarii  anno  I.  Ricardi  I.  et 
deinde  profeetus  in  Terrain  Sanctam  in  obsidione  Aeon  moriturus  est." — 
Gloss,  p.  338. 

This  celebrated  siege  lasted  two  whole  years,  and  Acre  held  out  till  after 
the  arrival  of  Richard  I.  in  the  summer  of  1191,  when  he  performed  the 
prodigies  of  valor  which  placed  him  at  the  head  of  crusading  chivalry. 


36  REFGN  OF  RICHARD  /.  [1153. 

and  he  divided  among  them  his  vast  possessions  before 
he  joined  the  crusade.  Collateral  branches  of  his  family 
continued  to  flourish  till  the  end  of  the  I7th  century; 
and  the  name  of  Glanville,  although  now  without  a  liv- 
ing representative,  will  ever  be  held  in  honored  remem- 
brance by  Englishmen.1 

King  Richard  I.,  eager  to  rescue  the  holy  sepulchre 
from  the  Infidels,  and  reckless  as  to  the  means  he 
employed  to  raise  supplies  for  the  equipment  of  his  ex- 
pedition, upon  the  resignation  of  Ranulfus  de  Glanville, 
put  up  the  office  of  Chief  Justiciar  to  sale,  and  the  high- 
est bidder  was  Hugh  Pusar,  Bishop  of  Durham.  The 
two  extremes  of  the  career  of  this  prelate  were  marked 
by  extraordinary  profligacy,  while  during  a  long  interval 
between  them  he  was  much  honored  for  his  virtues  and 
his  good  conduct.  Being  a  nephew  of  King  Stephen,  he 
was  brought  up  in  the  court  of  that  worthless  sovereign, 
and  his  morals  were  depraved  even  beyond  the  common 
licentious  standard  prevailing  there.  Nevertheless,  tak- 
ing priest's  orders,  he  was  made  Archdeacon  of  Win- 
chester ;  and,  without  any  symptom  of  reformation,  was 
appointed  to  the  bishopric  of  Durham.  If  any  sort  of 
external  decorum  was  preserved,  the  lives  of  churchmen 
were  not  strictly  scrutinized  in  those  days  ;  but  the  arch- 
deacon had  openly  and  ostentatiously  kept  a  harem  in 
his  parsonage-house ;  and  the  Archbishop  of  York  re- 
fused to  consecrate  him, — objecting,  that  he  had  not 
reached  the  canonical  age  for  being  made  a  successor  of 
the  apostles ;  and  reprobating  his  bad  moral  character, 
evidenced  by  his  having  three  illegitimate  sons  by  as 
many  mothers.  The  bishop  elect  complained  bitterly 
of  this  stretch  of  authority,  and  appealed  to  Rome. 
While  the  appeal  was  pending,  both  the  Pope  and  the 
Archbishop  died ;  and  Hugh,  backed  by  royal  solicita- 
tions, induced  the  new  Archbishop  to  consecrate  him, 
on  an  expression  of  penitence  and  promise  of  amend- 
ment. 

He  was  as  good  as  his  word  ;  and,  turning  over  a  new 
leaf,  he  devoted  himself  to  his  spiritual  duties,  and  be- 
came a  shining  ornament  to  the  episcopate.  So  he  went 

1  See  Lord  Lyttleton's  Hist,  of  H.  II.,  vol.  iii.  135 — 440.  Rot  Cur.  R.  6 
R.  I.  Roger  de  Wendover,  iii.  36.  Hoveden,  ad.  an.  1190. 


u89.J  HUGH  PUSAR.  37 

on  steadily  for  no  less  than  forty  years.  During  this 
long  period  he  built  many  churches  in  his  diocese,  and 
he  added  to  his  cathedral  the  beautiful  structure  called 
the  GALILEE,  which  remains  to  this  day  a  monument  of 
his  taste.  So  much  respected  was  he  by  his  own  order, 
that  he  represented  the  province  of  York  at  the  Council 
of  Tours  in  1163,  and  at  the  Council  of  Lateran  in  1179. 

But,  at  the  moment  he  was  doing  penance  for  his 
early  sins,  Godric,  a  pious  hermit,  had  foretold  that, 
"  although  he  would  long  see  the  light  very  clearly,  he 
was  to  be  afflicted  with  blindness  seven  years  before  his 
death."  His  physical  vision  remained  unimpaired  till 
his  eyes  were  finally  closed  ;  but  the  prophecy  was  sup- 
posed to  be  fulfilled  by  his  foolish  and  vicious  actions 
during  the  last  seven  years  of  his  life.  On  the  death 
of  Henry  II.,  of  whom  he  had  stood  in  great  awe,  he 
felt  a  sudden  ambition  to  mix  in  politics,  and  he  had  an 
easy  opportunity  to  gratify  his  inclination.  Notwith- 
standing his  princely  liberality,  he  had  amassed  immense 
riches,  and  the  highest  offices  and  honors  of  the  state 
were  now  venal.  At  a  vast  price,  he  bought  from 
Richard  the  Chief  Justiciarship  and  the  Earldom  of 
Northumberland, — not  then  a  mere  empty  title,  but  a 
dignity  to  which  important  jurisdictions  and  emolu- 
ments were  still  attached.  It  is  said  that  the  King 
when  girding  him  with  a  sword  at  his  investiture,  could 
not  refrain  from  a  jest  upon  his  own  cleverness  in  con- 
verting an  old  bishop  into  a  young  earl.  Very  soon 
afterwards  he  \vas  installed  in  the  AULA  REGIS.  Al- 
though he  had  a  slight  tincture  of  the  civil  and  canon 
law,  he  was  utterly  ignorant  of  our  municipal  institu- 
tions. But  he  showed  that  all  he  cared  for  was  to  reim- 
burse himself  for  his  great  outlay,  and  he  was  guilty  of 
rapine  and  extortion  exceeding  any  thing  practiced  by 
any  of  his  predecessors. 

Richard,  whose  departure  from  Palestine  had  been 
delayed  longer  than  was  expected,  heard  of  these  enor- 
mities, and  declared  that,  as  a  check  upon  the  Bishop  of 
Durham,  William  Longchamp,  the  Chancellor,  must  be 
associated  with  him  in  the  office  of  Chief  Justiciar. 
Pusar,  having  in  vain  remonstrated,  came  to  the  com- 
promise that  England  should  be  divided  between  the 


38  REIGN  OF  RICHARD  I.  [1191. 

two  Justiciars,  and  that  all  the  counties  north  of  the 
Trent  should  be  left  at  his  mercy.  He  now  tried  to 
levy  upon  this  poor  moiety  the  revenue  he  had  ex- 
pected to  draw  from  the  whole  kingdom  ;  but  at  last 
made  himself  so  odious,  that  Longchamp  marched  a 
small  military  force  to  the  north,  deposed  him  entirely 
from  the  Chief  Justiciarship,  deprived  him  of  the  Earl- 
dom of  Northumberland,  made  him  prisoner,  and  kept 
him  in  close  custody  till  he  gave  hostages  to  deliver  up 
all  the  castles  committed  to  his  charge.  He  appealed  to 
Richard,  now  performing  prodigies  of  valor  in  the  East ; 
and  that  monarch  wishing,  or  pretending  to  wish,  to  do 
him  justice,  sent  letters  ordering  him  to  be  restored : 
but  these  were  entirely  disregarded  by  Longchamp. 
The  ex-Chief  Justiciar  died  unredressed  and  unpitied, 
affording  (as  it  was  said)  a  fine  illustration  of  the  text 
of  Scripture,  "  No  man  can  serve  God  and  Mammon."1 

William  Longchamp,  who,  uniting  in  himself  the 
offices  of  Lord  Chancellor  and  Chief  Justiciar,  ruled 
England  during  the  absence  of  Richard  in  Palestine  and 
his  captivity  in  Germany,  is  one  of  the  most  interesting 
characters  to  be  found  in  mediaeval  history;  but  I  have 
already  published  whatever  I  have  been  able  to  collect 
respecting  his  extraordinary  career." 

After  his  fall,  WALTER  HUBERT,  who,  from  being  a 
poor  boy,  educated  out  of  charity  by  Ranulfus  de  Glan- 
villc,  had  reached  the  dignity  of  Archbishop  of  Canter- 
bury, had  the  secular  office  of  Chief  Justiciar  likewise 
bestowed  upon  him. 

From  the  rolls  of  the  Curia  Regis  still  extant,"  and 
from  contemporary  chroniclers,  I  am  enabled  to  give  an 
account  of  the  manner  in  which  Hubert,  while  Chief 
Justiciar,  dealt  with  a  demagogue,  who  for  some  time 

1  "  Ranulphus  de  Glanvilla  Regni  Procurator,  cum  jam  grandsevus  esset 
et  videret  a  Rege  novitio  multa  minus  consulte  et  improvide  actitari, 
solemniter  renuncians  officio,  Dunelmensem  Episcopum  habuit  successorem, 
qui  nee  obluctans  injunctum  a  Rege  suscepit  officium  ;  sed  si  proprio  fuisset 
contcntus  officio,  divini  juris  multo  decentius  quam  humani  Minister  extitis- 
set,  cum  nemo  possit  titrique  prout  dignum  est  deservire,  secundum  illud 
Dominieum,  Non potrstis  Deo  scrvire  et  Mammona" — Chron.  Walt.  Hem. 
ch.  48.  See  God.  Prnes.  753.  Roger  de  Wendover,  ii.  298.;  cxi.  8 — 15. 

'  Lives  of  Chancellors,  vol.  i.  ch.  v. 

1  The  Rolls  of  the  Curia  Regis  held  before  the  Chief  Justiciar,  from  the 
6  Richard  I.  iit)4,  have  been  published  by  the  Record  Commissioners.  Sir 


ir 93-]  WALTER  HUBERT.  39 

gave  great  disturbance  to  his  government.  William 
Fitz-Osbert,  a  citizen  of  London,  being  bred  to  the 
law,  is  denominated  "  legis  peritus,"  although  he  pos- 
sessed but  a  very  small  portion  of  learning ;  he  was  of 
a  lively  wit,  and  surpassing  eloquence ;  and  he  is  the 
earliest  instance  recorded  in  England  of  a  man  trying 
to  raise  himself  by  popular  arts.  His  stature  being 
mean,  he  endeavored  to  give  importance  to  his  looks  by 
nourishing  his  beard,  contrary  to  the  custom  of  the 
Normans.  Hence  he  was  generally  called  "Willyam- 
wiih-the-longe-berde"  Although  of  Norman  descent,  he 
pretended  to  take  part  with  the  Anglo-Saxons,  and  to 
be  their  advocate.  The  dominant  race  settled  in  Lon- 
don had  a  town  of  their  own,  "  Ealdormannabyrig," 
s;ill  known  as  the  ALDERMANBURY ;  while  the  rest  of 
the  city  was  inhabited  by  the  oppressed  natives.  Long- 
beard  first  distinguished  himself  by  speaking  at  the  Folk- 
motes,  which  were  still  allowed  to  be  held  for  laying  on 
assessments,  although  not  to  assist  in  making  laws  as  in 
former  times.  Not  succeeding  so  well  as  he  expected 
in  obtaining  the  applause  of  the  mob,  he  suddenly  be- 
came a  great  courtier,  and  tried  to  gain  the  favor  of 
Coeur  de  Lion  by  pretending  that  he  had  discovered  a 
treasonable  plot,  into  which  his  elder  brother,  Richard 
Fitz-Osbert,  had  entered.  Having  appealed  him  of 
high  treason  before  the  Curia  Regis,  he  swore  that,  at  a 
meeting  to  consider  of  a  further  aid  to  pay  the  King's 
ransom,  he  had  heard  the  appellee  say,  "  In  recompense 
for  the  money  taken  from  me  by  the  Chancellor  within 
the  Tower  of  London,  I  would  lay  out  forty  marks  to 
purchase  a  chain  in  which  the  King  and  the  Chancellor 
might  be  hanged  together.  Would  that  the  King  might 
always  remain  where  he  now  is  !  And  come  what  will, 
in  London  we  never  will  have  any  other  king  except 

Francis  Palgrave,  in  his  introduction  to  them,  says,  in  very  striking  lan- 
guage,— "  Comparing  these  records  with  the  commentary  furnished  by  the 
Year  Books,  and,  lastly,  opening  the  volumes  of  the  reporters  properly  so 
called,  we  could — if  human  life  were  adequate  to  such  a  task — exhibit  what 
the  world  cannot  elsewhere  show,  the  judicial  system  of  a  great  and  power- 
ful nation  running  parallel  in  development  with  the  social  advancement  of 
the  people  whom  that  system  ruled."  The  rolls  of  the  Curia  Regis  are  not 
so  interesting  as  might  have  been  expected,  as  they  for  the  most  part  merely 
state  the  names  of  the  parties,  the  nature  of  the  action,  the  plea,  and  th« 
judgment. 


40  REIGN  OF  RICHARD  I.  [1193. 

our    mayor,    Henry   Fitz-Ailwin,    of    London    Stone." 
The  appellee  pleaded  not  guilty ;  and,  availing  himself 
of  his  privilege  as  a  citizen  of  London  to  defend  him- 
self by  compurgation,  many  respectable  persons  came 
forward  to  attest  their  belief  in  his  innocence ;  and  he 
was   acquitted.       Longbeard  complained    bitterly   that 
Hubert,  the  Chief  Justiciar,  had  decided  the  cause  cor- 
ruptly ;  and,  returning  to  the  patriotic  side,  he  now  con- 
trived,  by  inveighing   against    Norman    oppression,  to 
raise  an    insurrection   against    the    Government,  52,000 
citizens   enrolling    themselves   as   his    adherents.      He 
likewise  called  a  folkmote  in  St.  Paul's  Churchyard,  and 
here  delivered  a  forcible  and  captivating  discourse  to 
the  assembled  people,  inviting  them  to  adhere  to  him 
steadily  as  the  protector  of  the  poor  and  the  vindicator 
of  their  ancient  rights.     For  some  time  he  set  the  Gov- 
ernment at  defiance,  but  his  popularity  rapidly  declin- 
ing,  Hubert,  the  Chief  Justiciar,  sent  out   a  body  of 
troops  into  the  City  to  apprehend  him.     After  a  slight 
skirmish,  he  was  obliged  to  take  refuge  in  the  church  of 
St.  Mary-le-Bow,  and  he  retired  to  the  lofty  spire,  in 
which  he  proposed  to  stand  a  siege.     The  Archbishop, 
having  in  vain  sent  him  a  summons  to  "  come  out  and 
abide  the  law,"  thought  that  he  might  use  a  freedcm 
with  his  own  church  which  would  have  been  sacrilege  in 
a  layman,  and  directed  that  the  structure  should  be  set 
on  fire.     Longbeard  was  obliged  to  abandon  his  strong- 
hold, and,  attempting  to  escape,  he  was  secured,  bound 
with  fetters  and  manacles,  and  carried  to  the  Tower  of 
London.     Here  an  extraordinary  sitting  of  the  AULA 
REGIS  was  held ;  and  the  "  proceres,"  or  more  wealthy 
citizens  of  London,  being  called  in  as  a  jury,  or  as  asses- 
sors, they  advised  that  he  should  be  condemned  to  in- 
stant death.      Sentence  was  immediately  pronounced, 
and   executed   with   great   barbarity.     Stripped  naked, 
and  tied  by  a  rope   to  a   horse's  tail,  Longbeard  was 
dragged  over  the  rough  streets  and  flinty  roads  to  Ty- 
burn, where  his   lacerated  and   almost  lifeless  carcass, 
after  the   infliction   of    many   cruelties,   was    hung   in 
chains.1 

1  Rot.  Cur.  Regis,  vol.  i.  69.  95.     Hoveden,  668.  765.     Neubrigensis,  557. 
*6a.    Diceto.  691.     M.  Paris,  181.     Gervasius,  1591.    Knyghton,  1412.    Sil 


M 96.]  WALTER  HUJ3ERT.  41 

Hubert  thus  acquired  a  temporary  triumph ;  but  his 
violation  of  the  right  of  sanctuary,  and  the  outrage  he 
had  committed  on  a  church  of  uncommon  sanctity, 
caused  great  scandal,  and  afterwards  led  to  his  own  fall. 
The  clergy,  as  a  body,  took  up  the  matter,  partly  from 
religious  feeling,  and  still  more  from  envy  towards  the 
Archbishop  ;  and  the  monks  of  Canterbury  in  particular 
complained  to  the  Pope  that  their  Archbishop  acted  as 
a  Justiciar,  sitting  as  a  judge  in  capital  cases — whereby 
he  not  only  broke  the  canons  forbidding  ecclesiastics  to 
meddle  in  affairs  of  blood,  but  was  so  entirely  engrossed 
in  secular  pursuits  that  all  his  ecclesiastical  duties  were 
entirely  neglected  and  cast  aside.  They  concluded  their 
accusation  with  a  statement  how,  "  contrary  to  all  the 
privileges  and  immunities  of  Holy  Church,  he  had  vio- 
lated the  sanctuary  of  St.  Mary-le-Bow,  whence  William- 
-with-tkc-Loud-Berde  was  forcibly  taken,  condemned  to 
death,  and  hanged  on  the  tree."  The  Pope  addressed  a 
mandate  to  Richard,  requiring  him,  as  he  tendered  his 
soul's  health,  to  remove  the  Archbishop  from  the  Justi- 
ciarship.  This  would  have  been  quite  enough  to  satisfy 
the  petitioners  ;  but  to  the  great  mortification  of  the 
hierarchy,  his  Holiness  furthermore  enjoined  the  King 
thenceforth  to  abstain  from  employing  any  prelate  in 
secular  affairs,  and  he  addressed  a  concurrent  mandate 
to  the  prelates  strictly  prohibiting  them  from  accepting 
employments  so  uncongenial  to  their  station  in  the 
Church.  The  King  obeyed,  and  Hubert  was  deposed 
from  the  Chief  Justiciarship  ;  but  the  general  regulation 
produced  very  little  fruit,  for  the  grasping  Archbishop 
contrived  to  obtain  a  high  civil  office  in  the  next  reign, 
and  ecclesiastical  ambition  soon  became  more  rampant 
in  England  than  it  had  ever  been.1 

King   Richard    appointed,    in   Archbishop    Hubert's 

Francis  Palgrave,  in  his  Introduction  to  the  Rotuli  Curice  Regis,  quotes  an 
authority  which  I  have  not  seen,  "  Annals  of  London  contained  in  Liber  de 
Antiquis  Legibus,  MS.,"  describing  "  how  the  Heretyke  called  With-the- 
Longe-Berde  was  drawen  and  hanged  for  heresye  and  cursed  doctryne  that 
he  had  thoughte."  From  this  it  would  appear  that  the  Archbishop  had  at- 
tempted to  give  a  religious  turn  to  the  affair,  and  excuse  his  own  sacrilege 
by  imputing  heresy  to  his  victim. 

1  Lives  of  Chancellors,  vol.  i.  ch.  vi.     Gervasius,  1614.     Hoveden,  779. 
M.  Paris,  193. 


42  REIGN  OF  KING  JOHN.  [1202. 

place,  GEOFFREY  FITZPETER,  a  powerful  Baron,  with 
great  possessions  both  by  inheritance  and  marriage; 
and,  like  Glanville,  well  skilled  in  the  laws  and  customs 
of  the  realm.  He  had  acted  as  a  Justice  of  the  Forest, 
as  a  Justice  Itinerant,  and  as  a  Puisne  Judge  in  the 
Aula  Regis.1  He  was  at  the  same  time  Sheriff  of  the 
united  counties  of  Hertford  and  Essex,  in  which  he 
held  many  manors.  His  military  talents  were  likewise 
distinguished.  The  contemporary  chroniclers  inform  us 
that,  as  soon  as  he  was  appointed  "  Proto-Justiciarius 
Angliae,"  he  led  a  powerful  army  against  the  Welsh  and 
entirely  defeated  the  restless  Gwenwynwyn,  who  had 
besieged  the  English  garrison  placed  by  William  de 
Brause  in  Maud's  Castle.  Three  thousand  seven  hun- 
dred of  the  enemy  are  said  to  have  been  killed  in  the 
conflict,  and  the  single  Englishman  who  fell  is  said  to 
have  been  killed  by  the  erring  shaft  of  a  fellow  soldier.* 

On  the  death  of  Richard  I.,  Fitzpeter  was  continued 
in  his  office  of  Chief  Justiciar  by  John,  and  was  very 
active  in  executing  the  measures  of  the  government,  as 
well  as  in  the  administration  of  justice.  "At  the  same 
time  he  appears  to  have  joined  in  the  King's  amuse- 
ments, as  a  payment  of  five  shillings  was  made  to  him, 
ad  luduin  suum.  In  n  John  there  is  a  curious  entry  on 
the  Great  Roll  of  his  fining  in  ten  palfreys  and  ten 
hawks,  that  the  King  of  Scotland's  daughter  might  not 
be  committed  to  his  custody ;  but  he  was  excused  the 
palfreys.  He  was,  no  doubt,  famous  for  his  choice  of 
hawks,  for  which  he  seems  to  have  had  an  expensive 
taste,  if  we  may  judge  from  his  having  purchased  one 
from  the  King  at  the  extravagant  price  of  four  tunels  of 
wine."1  Withal  he  must  have  been  a  ban  vivant,  for  we 
are  told  that  he  paid  a  penalty  for  breaking  the  canons 
of  the  Church  by  eating  flesh  on  fast  days.4 

However,  neither  by  the  great  nor  the  agreeable  quali- 
ties which  he  possessed  could  he  long  retain  the  favor  of 

1  On  this  account  he  was  exempted  from  the  payment  of  scutage  and  other 
assessments,  and  in  the  entry  recording  the  fact  he  is  inscribed  as  "  resident 
at  the  Exchequer." — Mad.  Exch.  ii.  390.  n. 

1  Hoveden,  780,  781.     Gervasius,  164,  165.     R.  de  Diceto,  703. 

1  Foss's  Judges  of  England,  vol.  ii.  64.,  cites  I  Rot.  de  Freest.  7  John. 
Cole's  Documents,  272,  275.  Mad.  Exch.  i.  462.  Rot.  de  Fin.  6  John,  243. 

4  Rot.  Misae.  14  John.     Cole's  Dor  248. 


1202.]  GEOFFREY  FITZPETER.  4.3 

the  capricious  tyrant  on  the  throne  :  and,  having  in  vain 
remonstrated  against  the  course  of  policy  which  pro- 
duced such  disasters,  he  resigned  his  office.  Till  the 
year  1213  he  remained  in  a  private  station.  Then  he 
was  reappointed,  at  the  request  of  the  Barons,  in  the 
hope  that  he  might  put  an  end  to  the  confusion  and 
misery  in  which  the  kingdom  was  involved.  All  ranks 
submitting  willingly  to  his  sway,  he  had  wonderful  suc- 
cess in  restoring  order  and  the  due  administration  of 
justice,  and  every  one  was  delighted  except  the  infatu- 
ated John,  who  grieved  to  see  himself  crossed  in  his 
love  of  tyranny.  Unhappily,  this  able  Chief  Justiciar 
died  suddenly  in  the  following  year.  When  the  King 
heard  of  his  death,  he  laughed  loudly,  and  said,  with  a 
profane  oath,  "  Now  I  am  again  King  and  Lord  of  Eng- 
land I"1 

A  contemporary  historian  thus  sounds  his  praise : — 
"  He  was  the  chief  pillar  of  the  state, — being  a  man  of 
high  birth,  learned  in  the  law,  possessed  of  great  wealth, 
and  closely  connected  with  all  the  chief  nobility  by 
blood  or  friendship.  Hence  the  King  dreaded  him 
above  all  other  mortals.  He  steadily  ruled  the  realm. 
But,  after  his  decease,  England  resembled  a  ship  tossed 
about  in  a  storm  without  a  rudder."" 

Shakspeare,  in  his  drama  of  KING  JOHN,  introduces 
this  Chief  Justiciar  as  one  of  the  dramatis  persona,  and 
gives  us  a  trial  before  the  AULA  REGIS,  the  King  himself 
being  present  in  person.  This  was  what  the  lawyers  call 
a  "  legitimacy  case"  the  action  being  brought  to  recover 
the  large  estates,  in  Northamptonshire,  of  the  late  Sir 
Robert  Fauconbridge,  Knt.,  which  were  claimed  by  the 
plaintiff,  as  his  son  and  true  heir,  on  the  ground  that  an 
elder  brother  who  had  got  possession  of  them  was  the 
son  of  Richard  Cceur  de  Lion.  The  trial  is  represented 
as  having  been  conducted  with  great  fairness ;  for  the 

1  "  Accepto  ver6  de  morte  ejus  nuncio,  Rex  cachinnando  dixit :  '  Per  pedes 
Domini,  nunc  primo  sum  Rex  et  Dominus  Anglise.' " — M.par.  in.  ann.  1214. 

8  "  Erat  autem  firmissima  Regni  columna ;  utpote  vir  generosus,  legum 
peritus,  thesauris,  reditibus  et  omnibus  bonis  instauratus,  omnibus  Anglioe 
Magnatibus  sanguine  vel  amicitia  confcederatus.  Unde  Rex  ipsum  pne 
omnibus  mortalibus  sine  delectione  formidabit  :  ipse  enim  lora  regai  guber- 
nabat.  Unde  post  ejus  obitum,  facta  est  Anglia  quasi  in  tempe.uate  navit 
sine  gubernaculo." — M.  Pans. 


44  REIGN  OF  KING  JOHN.  [1213. 

doctrine  was  admitted,  "  Pater  est  quern  nuptiae  demon- 
strant,"  subject  to  the  exception  of  the  absence  of  the 
husband  extra  quatuor  maria,  and  it  was  satisfactorily 
shown  that  at  the  time  to  which  the  eldest  son's  origin 
must  by  the  laws  of  nature  be  ascribed,  while  Lady  Fau- 
conbridge  was  in  England,  old  Sir  Robert  was  employed 
upon  an  embassy  in  Germany.  Much  weight  was  given 
to  the  evidence  of  the  Dowager  Queen,  Eleanor,  who 
declared  that  the  defendant  had  "  a  trick  of  Cceur  de 
Lion's  face,"  that  she  "  read  in  his  composition  the 
tokens  of  her  son,  and  that  she  was  sure  she  was  his 
grandame."  So,  by  the  advice  of  Lord  Chief  Justice 
Fitzpeter,  judgment  was  given  for  the  plaintiff;  while 
the  defendant,  kneeling  before  the  King,  rose  SIR  RlCH- 
ARD  PLANTAGENET.1 

In  right  of  his  wife,  this  chief  of  the  law  became  Earl 
of  Essex  ;  and  the  earldom  was  enjoyed  by  his  descend- 
ants till  1646,  when  it  became  extinct  by  the  death  of 
Robert  Devereux,  Earl  of  Essex,  the  great  parliametary 
general,  without  issue.8 

John's  intervening  Chief  Justiciars,  Simon  de  Pate- 
shull,  Eustace  de  Fauconberg,  Richard  de  Mucegos,  Wal- 
ter de  Crespiny,  and  Saherus,  Earl  of  Winchester,  did 
not  gain  much  celebrity  either  by  the  administration  of 
the  law  or  by  their  military  exploits.  When  Fitzpeter 
died  he  was  succeeded  by  PETER  DE  RUPIBUS,3  who 
seems  to  have  enjoyed  great  admiration  in  his  own  time, 
although  he  has  not  been  much  known  by  posterity. 
He  was  a  native  of  Poictou,  and  distinguished  himself 
as  a  stout  soldier  in  the  wars  of  Richard  I.,  by  whom 
he  was  knighted.  Although,  by  his  education  and 
habits,  better  qualified  to  cojmmand  an  army  than  to 
preside  over  a  diocese,  yet,  being  liked  by  King  John, 
who  did  not  stand  on  such  niceties,  he  was  made  Bishop 
of  Winchester,  and  afterwards  Chief  Justiciar.4  His 

'  King  yohn,  Act  I.,  Scene  I.  This  scene  corroborates  the  supposition 
that  Shakspeare,  either  before  he  left  Stratford  or  on  his  coming  to  London, 
had  been  employed  in  an  attorney's  office.  He  is  uniformly  right  in  his 
law  and  in  his  use  of  legal  phraseology,  which  no  mere  quickness  of  intu- 
ition can  account  for. 

1  Dug.  Bar.  i.  703.     See  Roger  de  Wendover,  cxi.  49 — 273. 

1  Sometimes  called  "Des  fioches." 

*  This  commission  is  still  extant :  "  Rex  Archiepiscopis,  &c.,  Consti  uimas 


I22I.J  PETER  DE  RUPIBUS.  45 

elevation  caused  much  envy,  which  he  was  at  no  pains  to 
soften ;  and  on  this  occasion  he  remained  but  a  short 
time  in  office,  although  he  showed  vigor  and  ability.1 
His  great  rival  was  Hubert  de  Burgh,  who  contrived 
within  a  year  after  his  elevation  to  supersede  him,  and 
to  hold  the  office  of  Chief  Justiciar  until  the  death  of 
King  John. 

Peter  de  Rupibus,  however,  was  again  in  favor  at  the 
commencement  of  the  next  reign,  and  was  appointed 
tutor  to  the  infant  Sovereign,  who  became  very  much 
attached  to  him.  He  was  employed  at  the  coronation  to 
consecrate  his  royal  pupil ;  and,  being  restored  to  his 
office  of  Chief  Justiciar,  he  was  first  minister  as  well 
as  supreme  judge.  However,  he  increased  the  ill  will 
which  prevailed  against  him  by  advising  the  resumption 
of  grants  of  the  domain  and  revenues  of  the  Crown 
which  the  King,  with  a  boyish  levity,  had  lavished  upon 
his  courtiers ;  and  he  made  himself  still  more  unpopular 
by  betraying  such  a  partiality  for  his  countrymen,  the 
Poictevans,  that  they  engrossed  almost  every  place  of 
honor  or  profit.  About  this  time  sprung  up  in  Eng- 
land that  jealousy  of  foreigners,  and  that  disposition  to 
despise  them,  which  have  ever  since  actuated  the  great 
mass  of  our  countrymen.  The  Normans  had  been 
highly  popular  at  the  Court  of  the  later  Anglo-Saxon 
Kings.  Having  conquered  the  country,  they  long  re- 
garded all  of  Anglo-Saxon  blood  as  helots,  while  they 
treated  Frenchmen  and  Italians  who  came  here  in  quest 
of  preferments  as  equals.  But,  after  the  loss  of  the  Con- 
tinental possessions  which  had  belonged  to  the  Kings  of 
England,  our  nobles  of  Norman  extraction  began  to 
consider  themselves  as  Englishmen,  and  there  was  a 
rapid  fusion  of  the  two  races  into  one  nation.  The  in- 
tercourse of  the  inhabitants  of  this  island  with  the  Con- 
tinent was  very  much  lessened,  and  the  prejudices  as 
well  as  the  virtues  of  islanders  gathered  strength  among 
them  from  generation  to  generation.  Peter  de  Rupibus 
excluded  all  who  were  born  in  England  from  employ- 

Justitiarium  nostrum  Angliae  P.  Winton.  Episcopum  quamdiu  nobis  pla- 
cuerit  ad  custodiendum  loco  nostro  terrain  nostram  Anglioe  et  pacera  regni 
nostri.  Ideo  vobis  mandamus  quod  ei  tanquam  Justic.  nostro  Angliae 
intendentes  sitis  et  respondentes.  Dat."  &c. 

1  Diu  non  duravit  in  officio  :  prudens  autem  et  potens." — Spel,  Gloss.  340 


46  REIGN  OF  HENRY  III.  [1231. 

ment,  and  treated  them  with  contumely,  after  the  fashion 
of  the  Justiciars  of  the  Conqueror  and  his  sons.  By 
preferring  a  foreigner  to  a  piece  of  ecclesiastical  prefer- 
ment which  was  coveted  by  the  famous  Roger  Bacon, 
then  one  of  the  King's  chaplains,  he  incurred  the  en- 
mity of  that  philosopher,  who  took  every  opportunity, 
both  in  his  sermons  and  in  private  conversation,  to  set 
the  King  against  him.  It  is  related  that  on  one  occa- 
sion Roger  asked  Henry  "  What  things  a  prudent  pilot 
in  steering  a  ship  was  most  afraid  of?"  and  Henry  an- 
swering that  "  Roger  himself  ought  best  to  know,  as  he 
had  himself  made  many  voyages  to  distant  parts,"  Roger 
replied,  "  Sir,  he  who  steers  a  trireme,  and  he  who  steers 
the  vessel  of  the  state,  should,  above  all  things,  beware 
of  stones  and  rocks,  or  '  Petrae  et  Rupes."'  Hubert  da 
Burgh,  his  old  rival,  took  advantage  of  the  combination 
against  the  favorite,  and  contrived  again  to  turn  him  out 
from  the  place  of  Chief  Justiciar,  and  to  become  his  suc- 
cessor. 

Peter  de  Rupibus,  now  yielding  to  the  passion  of  the 
age,  took  the  cross,  and  found  no  difficulty  in  obtaining 
a  dispensation  to  bear  arms  in  so  pious  a  cause,  although 
wearing  a  mitre.  He  is  said  to  have  fought  valiantly  in 
Palestine,  but  we  have  no  particulars  of  his  single  com- 
bats, or  the  numbers  he  killed  in  the  general  melde.1 

After  an  absence  of  several  years  he  returned,  and  all 
the  affection  of  his  royal  pupil  towards  him  was  revived. 
He  again  had  the  patronage  of  the  Court,  and  again  he 
yielded  to  the  besetting  sin  of  preferring  his  country- 
men. "  Naturales,"  says  M.  Paris,  "curiae  suae  ministros 
a  suis  removit  officiis,  et  Pictavenses  extraneos  in  eorum 
ministeriis  surrogavit."  He  even  carried  his  insolence 
so  far  as  to  declare  publicly  that  "  the  Barons  of  Eng- 
land must  not  pretend  to  put  themselves  on  the  same 
footing  with  those  of  France,  or  assume  the  same  rights 
and  privileges."*  The  consequence  was,  that  the  Eng- 
lish Bishops  combined  against  him  with  the  English 
Barons,  and  a  law  was  passed,  to  which  the  King  most 

1  Spelman  who  had  examined  all  the  chronicles,  is  obliged  to  say  in  gen- 
eral terms,  "  Exacto  munere  Terram  Sanctam  cruce-signatus  proficis;itur. 
Malta  illic  ejus  auspiciis  gesta  sunt  feliciter."— Glass,  p.  346. 

*  M.  Paris,  265. 


1238.]  HUBERT  DE  BURGH.  47 

unwillingly  gave  the  royal  assent,  "  That  all  foreigners 
holding  office  under  the  Crown  should  be  banished  the 
realm."  They  went  so  far  as  to  declare  "  that  if  the 
King  did  not  immediately  dismiss  his  foreigners  they 
would  drive  both  him  and  them  out  of  the  kingdom, 
and  put  the  crown  on  another  head  more  worthy  to  wear 
it."1  Peter  made  a  stout  resistence,  but,  owing  to  the 
jealousy  of  his  spiritual  brethren,  he  was  excommuni- 
cated and  obliged  to  fly. 

He  went  to  Rome  to  appeal  against  the  injustice  which 
had  been  done  him.  Here  his  military  prowess  stood  him 
in  good  stead.  Finding  Pope  Gregory  IX.  engaged  in  war, 
he  put  himself  at  the  head  of  his  Holiness's  army  and 
gained  a  great  battle.  In  consequence,  he  was  not  only 
absolved  from  excommunication,  but  ordered  to  be  rein- 
stated in  his  bishopric.  Accordingly  he  returned  to 
England,  and  was  received  in  solemn  procession  by  the 
monks  and  clergy  of  his  cathedral.  At  the  last  stage  of 
his  career  he  devoted  himself  wholly  to  his  spiritual 
duties,  and,  in  the  odor  of  sanctity,  he  died,  in  his  epis- 
copal palace  at  Farnham,  on  the  5th  of  June,  1238.  He 
was  buried  in  the  north  aisle  of  Winchester  Cathedral, 
where  is  still  to  be  seen  a  mutilated  figure  representing 
him  in  black  marble,  with  a  mitre  on  his  head,  but  with- 
out a  sword  by  his  side.  Although  he  had  gone  through 
so  many  adventures,  founded  several  religious  houses, 
both  for  monks  in  his  own  diocese  and  for  pilgrims  at 
Joppa,  and  filled  such  a  space  in  the  eyes  of  his  contem- 
poraries, he  is  now  only  mentioned  in  the  dry  chronicles 
of  the  Bishops  of  Winchester  or  of  the  chief  Justiciars 
of  England. 

His  rival  still  makes  a  conspicuous  figure  in  English 
history.  HUBERT  DE  BURGH  had  the  advantage  of 
being  born  in  England,  although,  like  all  the  nobility  of 
the  time,  he  was  of  foreign  extraction.  William  Fitz- 
adeline,  his  father's  elder  brother,  had  been  Steward  to 
Henry  II.,  and,  accompanying  that  monarch  into  Ireland, 
established  there  the  powerful  and  distinguished  family 
now  represented  by  my  friend  the  present  Marquess  of 
Clanricarde.  Hubert,  afterwards  the  famous  Justiciar, 
was  early  left  an  orphan,  and  was  very  slenderly  provided 

1  M.  Paris,  265. 


i8  REIGN  OF  HENR  Y  III.  [i  238. 

for,  but  he  received  from  nature  the  highest  gifts,  both 
of  person  and  understanding,  and,  through  the  care  of 
his  maternal  relations,  he  was  carefully  educated,  not 
only  in  all  martial  exercises  but  in  all  the  learning  of  the 
age.  He  gained  some  distinction  by  serving  in  the 
army  under  Richard  I.,  towards  the  conclusion  of  the 
reign  of  that  monarch  ;'  and,  on  the  accession  of  King 
John,  he  was  sufficiently  prominent  at  court  to  be  one 
of  the  pledges  that  the  convention  of  the  new  Sover- 
eign with  Reginald,  Earl  of  Boulogne,  should  be  faith- 
fully observed."  Soon  after,  he  was  made  Lord  Cham- 
berlain ;  and  now  it  is  that  Shakspeare  assigns  to  him 
the  custody  of  Arthur,  the  son  of  Geoffrey. 

It  is  not  easy  to  discover  the  view  taken  by  our  im- 
mortal dramatist  of  the  character  of  Hubert  de  Burgh, 
whom  he  represents  with  a  very  tender  heart,  but  who 
is  made  to  say,  when  solicited  to  rid  the  usurper  of  the 
"  serpent  in  his  way,"  "  He  shall  not  live ;"  and  who, 
deliberately  and  seriously  makes  preparations  for  put- 
ting out  the  poor  young  Prince's  eyes  with  hot  irons.8 
According  to  true  history,  the  Chamberlain  always 
showed  kindness  to  Arthur,  and  never  on  any  occasion 
pandered  to  the  evil  inclinations  of  John.  Yet  he  en- 
joyed the  favor  of  this  capricious  tyrant,  and  was  con- 
stituted by  him  Warden  of  the  Marches  of  Wales, 
Governor  of  the  Castle  of  Dover,  and  Seneschal  of  Poic- 
tou.  He  was  likewise  sent  by  him  as  ambassador  to 
France,  and  he  negotiated  a  peace  between  the  two 
kingdoms.  In  the  midst  of  these  high  employments, 

1  One  of  the  earliest  notices  of  him  in  our  records  is,  that  he  was  surety 
to  the  Crown  for  Petrus  de  Maillai,  who  agreed  to  pay  7000  marks,  "  pro 
habenda  in  uxorem  Ysabellam  filiam  Roberti  de  Turneham  cum  jure  suo," 
&c. — Mad.  Exch.  \\.  211. 

1  Rot.  Chart,  i  John,  30—36. 

1  Hubert  exclaims  aside,  and  therefore  sincerely — 

"  Tf  I  talk  to  him,  with  his  innocent  prate 
He  will  awake  my  mercy,  which  lies  dead  : 
Therefore  I  will  be  sudden,  and  despatch." 

And,  after  the  fit  of  compassion  had  conquered  him,  he  thus  addresses  the 
Prince : — 

"  Well,  see  to  live :  I  will  not  touch  thine  eyes 
For  all  the  treasure  that  thine  uncle  owes  : 
Yet  am  I  sworh,  and  I  did  purpose,  boy, 
With  this  same  very  iron  to  burn  them  out." 

King  John,  act  tv.  sc  i. 


122 1. J  HUBERT  DE  BURGH.  49 

he  condescended  to  act  as  Sheriff  of  several  English 
counties,  being  responsible  for  the  preservation  of  the 
peace,  and  for  the  due  collection  of  the  royal  revenues 
within  them. 

In  the  controversies  which  arose  between  John  and 
the  Barons,  Hubert  remained  faithful  to  his  master,  but 
gave  him  good  advice,  and  tried  to  instil  into  him  some 
regard  for  truth  and  plighted  faith.  Being  present  with 
him  at  Runnymede,  he  prevailed  upon  him  to  sign  the 
Great  Charter,  and  he  afterwards  sincerely  lamented  the 
violation  of  its  provisions. 

Though  praised  warmly  by  historians  for  his  open  and 
straightforward  conduct,  I  am  afraid  that  he  was  seduced 
into  duplicity  and  intrigue  by  his  desire  to  obtain  the 
office  of  Chief  Justiciar,  the  darling  object  of  his  am- 
bition. He  professed  much  friendship  for  Peter  de 
Rupibus,  but  he  is  suspected  of  having  tripped  up  his 
heels  in  the  end  of  the  year  1215,  and  to  have  taken  an 
unfair  advantage  of  the  unpopularity  under  which  this 
prelate  then  labored.  He  was  now  appointed  Chief 
Justiciar,  but  had  little  enjoyment  in  his  elevation.  The 
kingdom  was  in  a  state  of  distraction  from  internal  dis- 
cord, and  its  independence  was  threatened  by  the  inva- 
sion of  a  French  army.  He  gallantly  defended  Dover 
Castle  against  Prince  Louis,  and  gained  a  considerable 
victory  over  a  French  fleet  in  the  Channel.  The  ad- 
ministration of  justice,  however,  was  long  entirely  sus- 
pended, insomuch  that  Hubert  had  never  been  installed 
in  the  AULA  REGIS,  when  his  functions  were  determined 
by  the  King's  miserable  death  in  the  Castle  of  Newark. 

For  the  first  three  years  of  the  new  reign,  the  office  of 
Chief  Justiciar  was  superseded  by  the  appointment  of 
the  Earl  of  Pembroke,  the  Earl  Marshal,  as  Protector  of 
the  realm,  with  absolute  power.  On  the  death  of  that 
nobleman,  Hubert  was  restored  to  the  office  of  Chief 
Justiciar,  and  there  was  an  apparent  reconciliation  be- 
tween him  and  Peter  de  Rupibus,  who  was  intrusted 
with  the  education  of  the  young  king.1  The  wily  Poic- 
tevan,  availing  himself  of  his  influence  over  the  mind  of 
his  pupil,  by  and  by  had  his  revenge,  and,  once  more 
Chief  Justiciar,  he  engrossed  all  the  powers  of  the 

*M.  Paris,  247-251.     Waverley,  183.     Gul.  Armor,  qo. 


So  REIGN  OF  HENRY  III.  [1224. 

Crown.  Hubert  retired  from  Court,  and  prudently 
"bided  his  time."  Perceiving  the  odium  into  which 
his  rival  had  fallen,  he  formed  a  confederation  of  nobles 
and  churchmen  against  him,  and  compelled  him  to  seek 
for  safety  by  taking  the  cross,  and  setting  off  for  the 
Holy  Land.1 

For  some  years  Hubert  exercised  despotic  sway  in 
England.  He  was  created  Earl  of  Kent,  and,  in  the 
vain  hope  of  perpetuating  his  power,  he  obtained  a 
grant  for  life  of  the  office  of  Chief  Justiciar,  which 
hitherto  had  always  been  held  during  pleasure.  More- 
over, he  usurped  a  similar  appointment  to  the  Chief 
Justiciarship  of  Ireland. 

When  without  a  rival,  it  is  admitted  that  he  conducted 
himself  honorably  as  well  as  prudently.  He  displayed 

1  Dr.  Lingard  gives,  from  the  contemporary  chronicles,  the  following 
graphic  account  of  "  an  event  which  established  the  authority  of  Hubert, 
and  induced  his  rival  to  banish  himself  from  the  island  under  pretense  of 
making  a  pilgrimage.  Among  the  foreigners  enriched  by  John,  was  a  fero- 
cious and  sanguinary  ruffian  named  Fawkes,  who  held  the  castle  of  Bedford 
by  the  donation  of  that  monarch.  At  the  assizes  at  Dunstable,  he  had  been 
amerced  for  several  misdemeanors  in  the  sum  of  ^3000  ;  but,  instead  of 
submitting  to  the  sentence,  he  waylaid  the  judges  at  their  departure,  and, 
seizing  one  of  them,  Henry  de  Brinbrook,  confined  him  in  the  dungeon  of 
the  castle.  Hubert  willingly  grasped  the  opportunity  of  wreaking  his  ven- 
geance on  a  partisan  of  the  Bishop  of  Winchester.  The  King  was  induced 
to.  invest  in  person  the  fortress  of  this  audacious  rebel  ;  and  the  clergy  spon- 
taneously granted  him  an  aid  from  themselves  and  their  free  tenants.  Two 
towers  of  wood  were  raised  to  such  a  height  as  to  give  the  archers  a  full 
view  of  the  interior  of  the  castle  ;  seven  military  engines  battered  the  walls 
with  large  stones  from  morning  till  evening  ;  and  a  machine  termed  a  cat, 
covered  the  sappers  in  their  attempts  to  undermine  the  foundations. 
Fawkes,  who  had  retired  into  the  county  of  Chester,  had  persuaded  him- 
self that  the  garrison  would  be  able  to  defend  the  castle  for  twelve  months. 
But  the  barbican  was  first  taken  by  assault ;  soon  afterwards  the  outer  wall 
was  forced,  and  the  cattle,  horses,  and  provender,  in  the  adjacent  ward,  fell 
into  the  hands  of  the  victors  :  a  breach  was  then  made  in  the  second  wall  by 
the  miners  ;  and  the  royalists,  though  with  considerable  loss,  obtained  pos- 
session of  the  inner  ward  :  a  few  days  later  the  sappers  set  fire  to  the  props 
which  they  had  placed  under  the  foundations  of  the  keep  ;  one  of  the  angles 
sank  deep  into  the  ground,  and  a  wide  rent  laid  open  the  interior  of  the 
fortress.  The  garrison  now  despaired  of  success.  They  planted  the  royal 
standard  on  the  tower,  and  sent  the  women  to  implore  the  King's  mercy. 
But  Hubert  resolved  to  deter  men  from  similar  excesses  by  the  severity  of 
the  punishment.  The  knights  and  others  to  the  number  of  eighty  were 
hanged  ;  the  archers  were  sent  to  Palestine  to  fight  against  the  Turks  ;  and 
Fawkes,  who  now  surrendered  himself  at  Coventry,  was  banished  from  the 
island,  together  with  his  wife  and  family." — See  M  Paris  370  Dunst.  142- 
145.  New  Rym.  175.  Rot.  Claus.  639.  Annai.  Wig.  4St, 


i232.]  HUBERT  DE  BURGH.  51 

a  knowledge  of  the  law,  and  a  zeal  to  do  justice  to  all 
suitors  who  came  before  him,  for  which  he  had  not 
hitherto  had  credit ;  while  he  preserved  tranquillity  at 
home,  and  raised  the  consideration  of  England  with 
foreign  nations  to  a  pitch  unknown  since  the  death  of 
Cceur.de  Lion.  "  Multa  ben6  in  re  judiciaria,"  says 
Matthew  Paris,  "  multa  militia  gessit."1 

The  only  grave  act  of  misgovernment  imputed  to  him 
was  the  annulling  of  the  CHARTER  OF  THE  FOREST, — 
a  concession  which  was  most  reasonable,  and  which  had 
been  passionately  claimed  both  by  the  nobility  and  the 
people.4  However,  Hume  doubts  whether  this  act  was 
done  by  his  advice,  characterizing  him  as  "  a  man  who 
had  been  steady  to  the  Crown  in  the  most  difficult  and 
dangerous  times,  and  who  yet  showed  no  disposition  in 
the  height  of  his  power  to  enslave  or  oppress  the  peo- 
ple.'" 

But,  while  others  were  obliged  to  surrender  valuable 
possessions  which  they  held  under  royal  letters  patent, 
lie  was  annually  enriched  by  new  grants  of  forfeitures, 
escheats  and  wardships  ;  and  those  whom  he  disobliged 
declared  that  he  was  guilty  of  much  greater  rapacity 
than  his  banished  rival,  or  any  of  his  predecessors.  The 
temper  of  the  times  may  be  estimated  from  the  derisive 
title  of  "  Hubert's  Folly,"  given  to  a  castle  ineffectually 
erected  by  him  to  repress  the  incursions  of  the  Welch.4 
An  unsuccessful  expedition  into  France,  in  which  he  ac- 
companied the  King,  inflamed  the  public  discontent,  and 
precipitated  his  fall. 

It  so  happened  that  at  this  very  time  Peter  de  Rupibus 
returned  to  England  from  Palestine,  having  been  pre- 
ceded by  exciting  reports  of  the  gallantry  and  devotion 
which  he  had  displayed  in  assisting  to  recover  the  holy 
sepulchre,  while  his  old  enemy  had  been  enjoying  ease 
ahd  amassing  riches  at  home.  All  now  predicted  the  fall 

1  M.  Paris,  ad  ann.  1232.  But  though  very  scrupulous  while  sitting  on  the 
bench,  he  was,  like  other  Justiciars,  always  ready  to  exercise  a  vigor  beyond 
the  law  when  in  the  field.  In  the  I5th  year  of  Henry  III.,  hearing  that  the 
Welsh  had  committed  great  outrages,  especially  about  Montgomery,  he 
marched  thither,  and,  having  taken  many  prisoners,  he  struck  off  their  heads 
and  sent  them  to  the  King ;  which  so  provoked  Lewellyn,  Prince  of  Wales, 
that  raising  all  the  power  he  could,  he  retaliated  on  the  English,  setting  fire 
even  to  the  churches,  in  which  crowds  who  had  taken  sanctuary  were  burned. 

1  M.  Paris,  p.  232.    *  Hist,  of  Eng.  ii.  159.     4  Roger  de  Wendover,  iv.  173. 


52  REIGN  OF  HENRY  II T.  [1232 

the  obnoxious  minister.  By  the  subtle  advice  of  his 
enemies,  instead  of  any  violence  being  offered  to  him, 
a  great  council  was  called,  and  an  order  was  made  upon 
him  to  answer  for  all  the  wardships  which  he  had  held, 
all  the  rents  of  the  royal  demesnes  which  he  had  re- 
ceived, and  all  the  aids  and  fines  which  had  been  paid 
into  the  Exchequer  while  he  filled  the  office  of  Chief 
Justiciar.  Seeing  that  his  ruin  was  determined  upon, 
he  took  to  sanctuary  in  the  priory  of  Merton.  Being 
immediately  removed  from  his  office  of  Chief  Justiciar, 
he  asserted  that  he  held  the  appointment  for  life,  by  a 
grant  under  the  Great  Seal ;  but  he  was  told  that  the 
patent  was  illegal  and  void  ;  and  Stephen  de  Segrave 
was  appointed  his  successor,  at  the  instigation  of  Peter 
de  Rupibus,  who  at  present  preferred  the  enjoyment  of 
power  without  the  envy  of  office. 

Proclamation  was  now  made  through  the  City  of  Lon- 
don by  a  herald  that  "  all  manner  of  persons  who  had 
any  charge  against  the  ex-Chief  Justiciar  were  to  come 
forth,  and  they  should  be  heard."  He  was  not  only  ac- 
cused of  treason  to  the  King  in  the  negotiations  he  had 
carried  on,  but  of  poisoning  some  of  the  nobility,  of  ab- 
stracting from  the  royal  treasury  a  gem  which  had  the 
virtue  of  rendering  the  wearer  invulnerable,  and  of  gain- 
ing the  king's  favor  by  sorcery  and  enchantment. 

It  was  first  resolved  to  drag  him  from  his  asylum  by 
force,  and,  with  this  view,  the  Mayor  of  London  and  a 
body  of  armed  citizens  were  sent  to  storm  the  priory  ; 
but  the  King,  being  warned  by  the  Archbishop  of  Dub- 
lin of  the  sacrilege  about  to  be  committed,  agreed  to  allow 
the  accused  to  remain  there  unmolested  for  five  months, 
that  he  might  prepare  for  his  trial.  Hubert,  finding 
himself  no  longer  watched,  left  his  sanctuary  and  pro- 
ceeded towards  Bury  St.  Edmunds  to  visit  his  wife ;  but 
the  Government,  afraid  of  his  intentions,  despatched  a 
body  of  300  horsemen  with  orders  to  arrest  him  and 
convey  him  to  the  Tower  of  London.  Being  in  bed 
when  he  heard  of  their  approach,  he  fled  naked  to  the 
parish  church  of  Boisars,  and,  on  the  steps  of  the  altar, 
with  the  consecrated  host  in  one  hand  and  a  silver  cross 
in  the  other,  awaited  the  arrival  of  his  pursuers.  Un- 
moved by  the  sanctity  of  the  scene  which  they  beheld, 


i232.J  HUBERT  DE  BURGH.  53 

they  seized  him,  placed  him  on  horseback,  tied  his  feet 
under  the  horse's  belly,  and  proceeded  with  their  cap- 
tive towards  the  metropolis  amidst  the  derisive  shouts 
of  the  populace.  The  Bishop  of  Winchester,  either  re- 
specting the  privileges  of  the  Church,  or  afraid  of  excit- 
ing sympathy  in  favor  of  a  depressed  rival,  caused  orders 
to  be  given  that  the  prisoner  should  be  replaced  on  the 
steps  of  the  altar  from  which  he  had  been  taken  ;  and 
the  Sheriff  of  Essex  was  charged  under  penalty  of  death 
to  prevent  his  escape.  To  render  this  impracticable,  a 
deep  moat  was  dug  round  the  sacred  building  in  which 
he  was  confined,  and  on  the  fortieth  day  hunger  or  des- 
pair compelled  him  to  surrender  himself.  After  a  short 
confinement  in  the  Tower,  he  was  brought  before  a 
council  of  his  peers  assembled  in  Cornhill.  The  accusa- 
tions against  him  being  read,  he  declared  that  he  should 
make  no  defense,  and  that  he  placed  his  body  and  his 
lands  and  goods  at  the  King's  pleasure.  Sentence  was 
passed,  whereby,  being  allowed  to  retain  his  patrimonial 
inheritance  and  the  lands  he  had  gained  by  marriage,  he 
was  to  forfeit  all  the  rest  of  his  property  to  the  Crown, 
and  was  to  be  kept  in  safe  custody  in  the  Castle  of 
Devizes  till  he  should  enter  the  order  of  the  Knights 
Templars. 

The  following  year  he  was  dreadfully  alarmed  by  the 
news  that  the  custody  of  this  castle  had  been  transferred 
to  a  retainer  of  Peter  de  Rupibus  ;  and,  that  he  might 
not  fall  into  the  hands  of  his  mortal  enemy,  he  dropped 
from  the  castle  wall  into  the  moat,  in  the  obscurity  of 
the  night,  and  again  took  sanctuary  in  a  neighboring 
church.  The  guard  hastened  after  him  with  lights  and 
clubs,  and,  rinding  him  prostrate  before  the  high  altar 
with  a  cross  in  his  hands,  carried  him  back  again  into 
stricter  custody  in  the  castle.  The  Bishop  of  Salisbury, 
within  whose  diocese  this  outrage  had  been  committed, 
threatened  to  excommunicate  all  concerned  in  it.  In 
accordance  with  the  respective  obligations  and  privileges 
of  the  parties,  the  King  restored  Hubert  to  the  church 
from  which  he  had  been  forced,  but  at  the  same  time 
ordered  the  Sheriff  of  Wiltshire  to  besiege  him  there, 
and  to  starve  him  to  death  unless  he  choose  voluntarily 
to  surrender.  In  this  desperate  condition,  two  of  the 


54  REIGN  OF  HENRY  III.  [1239. 

soldiers  who  had  formerly  served  under  him  took  com- 
passion upon  him,  furnished  him  with  some  food,  clothed 
him  in  a  military  habit,  and,  conveying  him  into  Wales, 
put  him  under  the  protection  of  the  Earl  of  Pembroke. 

Afterwards,  at  an  assembly  of  the  Barons  held  at  West- 
minster, the  King  preferred  articles  of  impeachment 
against  him,  accusing  him  of  usurping  the  office  of  Chief 
Justiciar,  of  treason,  of  rapacity,  and  of  trying  to  pre- 
vent the  King's  marriage  with  the  daughter  of  the  Duke 
of  Austria  by  saying  that  the  King  squinted,  had  a 
leprous  appearance,  and  was  not  qualified  for  wedlock.1 
By  his  answers  he  denied  all  these  charges,  insisting  that 
he  had  been  appointed  Justiciar  by  King  John  at  Runny- 
mede,  and  that  he  had  never  exercised  the  powers  of 
that  office  without  due  warrant.8 

Finally,  a  compromise  was  effected  by  which  he  sur- 
rendered four  of  his  strongest  castles,  and  released  all 
right  to  the  office  of  Chief  Justiciar, — receiving  a  pardon 
for  all  offenses,  and  being  allowed  to  retain  all  his  other 
possessions.  He  now  became  disgusted  with  public  life, 
and  he  spent  the  rest  of  his  days  in  seclusion.  After  re- 
penting of  his  many  irregularities,  and  receiving  the 
consolations  of  religion,  he  quietly  expired  at  Banstede, 
in  Surrey,  on  the  I2th  day  of  May,  1243. 

His  body,  being  brought  to  London,  was  honorably 
interred  in  the  church  of  the  Black  Friars  in  Holborn;  a 
house  to  which  he  was  a  benefactor,  having  given  it, 
amongst  other  things,  his  inn  at  Westminster,  which  be- 
came the  town  residence  of  the  Archbishops  of  York, 
and  afterwards  the  royal  palace  of  Whitehall.  He  was 
married  four  times;  all  his  wives  being  high  born,  and 
the  last  no  less  a  person  than  the  daughter  of  William 
the  Lion,  King  of  Scotland.  This  marriage  took  place 
at  York  when  he  was  Chief  Justiciar  the  second  time, 
the  Archbishop  of  Canterbury  performing  the  ceremony, 
and  the  King  and  many  of  the  nobility  assisting  at  it." 

1  Prorsus  inutilis  amplexibus  alicujus  ingenuse  mulieris." — M.  Paris. 

«  I  St.  Tr.  14. 

__ '  Spelman,  340.  See  Dugdale's  Baronage,  and  Hasted's  History  of 
Kent.  Notwithstanding  the  open  and  solemn  manner  in  which  this  mar- 
riage was  celebrated,  it  was  afterwards  made  an  article  of  charge  against 
him,  "  that  whereas  William,  King  of  Scots,  had  delivered  two  of  his 
daughters  to  John,  King  of  England,  under  condition  that  the  eldest  should 


i232.J  HUBERT  DE  BURGH.  55 

His  descendants,  after  flourishing  for  some  generations, 
became  extinct  in  the  male  line.  He  was  not  an  author 
like  Glanville,  but  he  is  supposed  to  have  patronized 
Bracton,  who,  as  a  jurist,  was  the  great  glory  of  this 
reign. 

The  most  touching  panegyric  ever  pronounced  upon 
Hubert  was  by  an  Essex  blacksmith,  who,  being  obliged 
to  forge  fetters  to  secure  him  when  they  were  carrying 
him  prisoner  to  the  Tower  of  London,  exclaimed,  "  Do 
what  you  please  with  me ;  I  would  rather  die  than  put 
fetters  on  him.  Is  he  not  the  faithful  and  magnanimous 
Hubert,  who  has  so  often  rescued  England  from  the 
ravages  of  foreigners,  and  restored  England  to  the  Eng- 
lish— who  served  his  Sovereign  so  firmly  and  faithfully 
in  Normandy  and  Gascony  that  he  was  sometimes  'com- 
pelled to  eat  horseflesh,  his  very  enemies  admiring  his 
constancy — who  preserved  Dover,  the  key  of  England, 
against  the  King  of  France  and  all  his  power — and  who 
secured  our  safety  by  subduing  our  enemies  at  sea? 
May  God  be  judge  between  him  and  you  for  such  unjust 
and  inhuman  treatment  I"1 

After  the  rivalry  of  Peter  de  Rupibus  and  Hubert  de 
Burgh  had  been  terminated  by  the  ruin  of  both,  there 
began  the  struggle  between  the  Crown  and  the  Barons, 
which  was  not  terminated  till  Simon  de  Montfort  fell  in 
the  fatal  battle  of  Evesham,  more  than  thirty  years  af- 
terwards. During  this  period,  several  reached  the  dig- 
nity of  Chief  Justiciar  who  were  neither  distinguished 
as  judges,  nor  gained  much  political  or  military  renown  ; 
and  whom  we  shall,  therefore,  quickly  despatch.  Hu- 
bert's immediate  successor  was  Stephen  de  Segrave,  who 
had  previously  been  a  common  justiciar,  or  puisne  judge, 

be  married  to  Henry,  Prince  of  England,  or,  in  the  event  of  his  death,  to 
Richard,  Earl  of  Cornwall,  yet  that  Hubert  himself  had  taken  her  to  wife 
while  Henry  was  under  age,  and  incapable  of  solemnizing  the  marriage." 
The  defense  made  by  Hubert  was,  "  that  he  knew  nothing  of  any  treaty  for 
marrying  the  Princess  of  Scotland  to  Henry  or  Richard  ;  that  the  Princesses 
were  to  be  bestowed  in  marriage  by  the  King  of  England,  with  the  appro, 
bation  of  the  nobility,  and  that  in  consequence  the  eldest  was  so  be- 
stowed on  him,  Hubert."  "  If  the  controverted  article  existed,"  says  Lord 
Hales,  "  we  must  admire  the  effrontery  of  Hubert  ;  if  not,  the  ignorance  or 
malice  of  his  accusers." — Annals  of  Scotland,  i.  170. 

1  See  Roger  de  Wendover,  iv.  247 — 253  ;  Rot.  Liberat.  10 ;  Rot.  Pat  II  j 
Roger  de  Wendover,  iii.  293 — 380  ;  Rot.  Glaus,  i.  319 — 322. 


56  REIGN  OF  HENRY  III.  [1259. 

in  the  AULA  REGIS.1  He  was  a  rare  instance,  in  those 
days,  of  a  man  being  in  a  high  civil  station  who  was  of 
obscure  origin  ;  but  this  was  accounted  for  by  the  circum- 
stance of  his  having  begun  his  career  as  a  churchman. 
He  was  then  knighted,  and  showed  extraordinary  prow- 
ess in  the  field.  Last  of  all,  he  addicted  himself  to  the 
jurisprudence.  When  he  had  gained  the  object  of  his 
highest  ambition,  he  cared  little  for  the  interests  of  the 
suitors,  he  recommended  arbitrary  measures  to  the  king, 
and  he  enriched  himself  by  rapacity.  Having  obtained 
a  dispensation  from  the  Pope  to  marry,  notwithstanding 
his  religious  vows,  he  made  good  use  of  his  privilege,  for 
he  had  successively  two  wives  of  the  distinguished  fami- 
lies of  Le  Despencer  and  Hastings ;  and  the  Earls  of 
Berkeley,  the  Earls  of  Egremont,  and  all  the  branches 
of  the  House  of  Howard,  are  descended  from  him.* 

Next  came  Hugo  de  Pateshulle,  who  had  the  reputa- 
tion of  integrity  as  a  judge,  but  nothing  is  said  of  his 
learning  or  ability.  He  resigned  his  office  on  being 
elected  Bishop  of  Lichfield  and  Coventry.  Of  his  suc- 
cessor, Gilibertus  de  Segrave,  still  less  is  known,  for  the 
industrious  Spelman  is  obliged  to  say,  "  Ego  vero  nihil 
de  eo  rcperi :"  and  all  that  is  related  by  Philip  Lovel, 
who  followed,  is,  that  when  he  was  thrust  out  of  office 
by  the  Barons,  he  died  of  grief."  Concerning  John 
Maunsel,  whom  the  Barons  substituted  as  Chief  Justi- 
ciar,  I  have  already  told  all  that  is  memorable,  as  he  had 
before  filled  the  office  of  Lord  Chancellor.4 

We  now  come  to  a  Chief  Justiciar  pronounced  to  have 
been  "  a  distinguished  soldier,  and  learned  in  the  law  of 
the  land."4 

Hugh  Bigod  was  a  younger  son  of  Roger  Bigod,  Earl 
of  Norfolk ;  and,  although  he  declined  to  take  orders, 

1  Madd.  Exch.  i.  63.  65. 

_  *  See  Spelman,  341.  He  is  thus  pithily  despatched  by  M.  Paris : — "  In 
juventute  sua  de  clerico  factus  Miles,  licet  de  humili  genere  oriundus, 
strenuitate  sua  ultimus  diebus  adeo  ditatus  et  exaltatus  est,  ut  inter  primos 
regni  reputatus,  pro  Justiciario  habitus  est,  et  omnia  fere  regni  negotia  pro 
libitu  disposuit,  sed  semper  plus  sui  amicus  quam  reipublicae." 

1  "  Judicio  Baronum  ejicitur  ex  officio,  an.  1258,  et  sequenti  anno  pro 
mentis  amaritudine  diem  obiit." — M.  Paris. 

*  Lives  of  Chancellors,  i.  ch.  vii. 

"  Nobiles  firmius  confcederati  constituerunt  sibi  Justiciarium  Militem 
illustrem  et  legum  terrse  peritum  Hugonem  Bigod,  qui  officium  Justiciarias 
strenue  peragens,  nullatenus  permittat  jus  regni  vacillare." — M.  Pans. 


n6o.]  HUGH  BIGOD.  57 

he  afforded  an  extraordinary  instance  of  a  layman  ac- 
quiring a  profound  knowledge  both  of  the  civil  and 
municipal  law.  At  the  same  time  he  was  initiated  in 
military  exercises,  and  was  considered  a  gallant  and 
accomplished  knight.  He  was  appointed  governor  of 
the  Castle  of  Pickering  ;  and  he  accompanied  the  King 
in  an  expedition  against  the  Welsh,  as  well  to  assist  in 
negotiation  as  in  the  field.  But  he  was  persuaded  by 
his  elder  brother,  the  famous  Roger  Bigod,  the  fourth 
Earl  of  Norfolk  of  that  name,  who  headed  the  Barons 
against  Henry,  to  join  their  party  ;  and  at  the  parlia- 
ment held  at  Oxford,  when  the  famous  "  PROVISIONS  " 
were  agreed  to  which  vested  the  royal  authority  in  a 
small  oligarchy,  he  was  constituted  Chief  Justiciar,  and 
the  Tower  of  London  was  committed  to  his  charge. 

Notwithstanding  the  violent  manner  in  which  he  was 
appointed,  he  administered  justice  with  great  impartial- 
ity as  well  as  vigor  ;  and  it  was  said  that  there  had  not 
been  such  a  judge  in  England  since  Ranulfus  de  Glan- 
ville.  With  Roger  de  Thurkolby  and  Gilbert  de  Pres- 
ton, two  very  learned  puisnies,  as  his  companions,  he 
made  a  circuit  through  every  county  in  the  kingdom, 
putting  down  disturbances,  punishing  malefactors,  and 
justly  deciding  civil  rights.  He  cashiered  Richard  de 
Grey,  who  had  been  constable  of  Dover  Castle,  and 
warden  of  the  Cinque  Ports  ;  and  he  was  as  little  moved 
by  the  piteous  looks  of  the  poor  as  by  the  scornful 
glances  of  the  powerful.1 

For  some  reason  not  satisfactorily  explained  to  us, 
while  universally  applauded,  and  while  the  party  by 
whom  he  had  been  elevated  was  yet  triumphant,  he  re- 
signed his  office  when  he  had  held  it  little  more  than  a 
year.  Some  say  that  the  Barons  had  resolved  to  make 
it  an  annual  office  ;  some,  that  they  were  jealous  of  his 
popularity  ;  and  others,  that  he  would  no  longer  be 
associated  with  them  in  their  scheme  to  usurp  the  pre- 
rogatives of  the  Crown.  He  afterwards  again  took  the 
King's  side,  and  fought  for  him  in  the  battle  of  Lewes. 
When  the  rout  began,  he  fled  the  field,  but  was  accom- 


1  "  Angliam  de  comitatu  in  comitatum  circuit,  omnibus  justitiam 
aequissima  distribuens  :  vultu  nee  motus  pauperum,  nee  potentum  flaccidus 
supercilio."  —  See  Spelm.  341. 


58  REIGN  OF  HENRY  III.  [1257. 

panied  by  the  Earl  of  Warrenne  and  other  brave  knights. 
Notwithstanding  the  proofs  they  had  given  of  their 
courage,  they  did  not  escape  the  satirical  notice  of  Peter 
Langtoft,  who  thus  described  their  flight : — 

"  The  Erie  of  Warenne,  I  wote,  he  escaped  over  the  se, 
And  Sir  Hugh  Bigote  als  with  the  Erie  fled  he." 

When  the  royal  authority  was  restored  by  the  victory 
at  Evesham,  he  was  again  appointed  to  the  government 
of  Pickering  Castle;  but  the  office  of  Chief  Justiciar, 
such  as  it  had  been,  was  thought  to  be  too  powerful  to 
be  given  to  any  subject,  and  it  could  not  well  be  offered 
to  him  shorn  of  its  splendor. 

We  have  no  particulars  of  the  closing  scene  of  his  life, 
but  it  must  have  occurred  soon  after,  as  we  know,  from 
the  Fine  Rolls,  that  on  the  /th  of  November,  1266,  his 
son  Roger  did  homage  to  the  King  at  Kenilworth  as 
heir  to  his  lands.1 

On  the  resignation  of  Hugh  Bigod,  the  Barons  ap- 
pointed Hugh  le  Despencer  as  his  successor.  This  Jus- 
ticiar was  celebrated  more  for  his  bravery  than  for  his 
learning ;  but  if  he  was  not  always  quite  impartial  as  a 
judge,  he  at  least  had  the  merit  of  being  always  true  to 
his  party.  He  was  said  to  have  been  descended  from 
Robert  le  Despencer,  steward  to  William  the  Conquer- 
or; but  as  the  royal  steward  for  the  time  being  was 
called,  long  after  the  Conquest,  "  Le  Despencer,"  there 
is  a  doubt  as  to  the  time  when  the  name  of  the  office 
passed  into  a  surname,*  and  whether  his  ancestors  was 
not  some  noble  who  had  held  it  more  recently.  Anti- 
quaries dispute  even  as  to  the  immediate  ancestors  of 
Hugh,  although  they  all  agree  that  he  was  of  noble 
blood.  We  do  not  know  much  of  his  training,  and  he 
is  first  mentioned  by  historians  as  the  companion  of 
Richard,  King  of  the  Romans,  the  brother  of  Henry 
III.,  when  that  prince  went  into  Germany  in  pursuit  of 
the  imperial  crown.  On  his  return  to  England  he  joined 

1  Rot.  Fin.  ii.  448. 

*  In  Scotland  the  office  retained  its  Saxon  appellation,  and  hence  we  have 
the  illustrious  family  name  of  Stewart  or  Stuart ;  although,  generally  speak- 
ing, French  was  spoken  at  the  Scotch  as  well  as  at  the  English  court — of 
which  we  have  a  proof  in  the  office  of  taking  charge  of  the  royal  table  linen 
having  given  rise  to  the  name,  so  distinguished  in  our  day,  of  Napier. 


1263.]  HUGH    LE    DESPENCER.  59 

the  Barons,  who  were  in  arms  against  the  King ;  and 
when  they  carried  the  "  Provisions  of  Oxford,"  he  was 
one  of  the  twelve  commissioners  in  whom  the  exercise 
of  the  royal  prerogative  was  vested,  In  the  course  of 
the  following  year,  he  went  as  an  Itinerant  Justice  into 
several  counties,  and  gave  entire  satisfaction  to  the  rul- 
ing powers,  although  not  to  the  suitors. 

When  he  was  elected  Chief  Justiciar,  there  were  soon 
heavy  complaints  against  him  ;  and  his  partiality  or  in- 
capacity very  much  strengthened  the  reaction  in  favor  of 
the  royal  authority.  At  last,  Henry,  having  received 
from  the  Pope  a  dispensation  from  his  oath  to  observe 
the  "  Provisions  of  Oxford,"  assembled  a  Parliament  at 
Westminster,  in  which  he  had  a  large  majority.  Here 
Le  Despencer  being  ordered  to  deliver  up  the  Rolls  of 
Chief  Justiciar1  at  the  same  time  that  the  usurping  Chan- 
cellor was  ordered  to  deliver  up  the  Great  Seal,  they 
joined  in  saying  that  they  could  not  do  so  without  the 
consent  of  the  Barons,  by  whom  they  had  been  ap- 
pointed ;  but  the  King,  with  general  approbation,  dis- 
missed him,  and  appointed  Philip  Basset  Chief  Justiciar 
in  his  stead. 

Hugh  le  Despencer,  maintaining  that  he  had  not  been 
lawfully  superseded,  still  claimed  to  be  entitled  to  per- 
form the  functions  of  the  office,  and,  the  tide  again 
turning  in  favor  of  the  Barons,  the  King  was  obliged  to 
recognize  him  as  Chief  Justiciar.  The  following  year, 
open  hostilities  being  resumed,  he  placed  himself  at  the 
head  of  a  strong  military  force,  destroyed  the  houses  of 
Philip  Basset  and  the  loyalist  nobles  in  Westminster, 
imprisoned  the  King's  judges,  even  pillaged  foreign 
merchants,  and  extorted  large  sums  of  money  by  cruel- 
ties on  the  Jews. 

In  the  battle  of  Lewes  our  Chief  Justiciar  commanded 
one  of  the  wings  of  the  army,  and  with  his  own  hand 
took  prisoner  Marmaduke  de  Twenge,  whose  ransom 
was  fixed  at  700  marks.  Immediately  after,  no  fewer 
than  six  strong  castles  were  placed  under  his  govern- 

1  At  this  time  the  Chief  Justiciar  seems  to  have  held  in  his  hand  certain 
parchment  rolls  as  the  emblem  of  his  office  :  "  Rex  vocatis  ad  se  Justiciario 
et  Cancellario  nuper  institulis  a  Baronibus,  sigillum  suum  sibi  recdi,  et 
rotulos  de  Justuiaria  sibi  mandavit  restitui." — See  Spel.  341. 


60  REIGN  OF  HENRY  III.  [1253. 

ment,  an.d  he  had  a  grant  of  1000  marks  for  his  better 
sustentation  in  the  office  of  Chief  Justiciar.  He  was 
likewise  appointed  one  of  the  six  commissioners  to  treat 
with  the  Pope's  legate  and  the  King  of  France,  as  me- 
diators relative  to  the  reformation  of  the  state. 

He  continued  to  do  the  judicial  business  of  the  office 
regularly  till  again  called  into  the  field,  to  make  head 
against  the  formidable  force  assembled  under  Prince 
Edward  for  the  re-establishment  of  the  Royal  authority. 
When  the  two  armies  came  in  sight  of  each  other,  near 
Evesham,  the  Earl  of  Leicester,  in  consideration  of  his 
age  and  infirmities,  advised  him  to  leave  the  field,  but 
he  refused  to  disgrace  his  ermine  by  such  poltroonery ; 
and  the  two  were  slain  together,  manfully  making  head 
against  mighty  odds,  and  refusing  quarter  which  was 
offered  to  them. 

Hugh  le  Despencer  is  to  be  considered  the  last  of 
those  remarkable  men  who,  for  above  two  centuries, 
exercised  conjointly  the  functions  now  belonging  to  the 
first  judge  in  the  land  and  to  the  commander-in-chief  of 
the  forces.  Such  a  combination  (as  was  seen  in  the  Ro- 
man republic)  certainly  has  a  powerful  tendency  to  de- 
velop the  highest  faculties  of  the  mind,  and  produces 
characters  of  greater  eminence  than  are  to  be  found 
when  the  sword  and  the  gown  are  permanently  dis- 
united. 

The  son  and  grandson  of  the  last  of  the  Chief  Justi- 
ciars  acquired  a  most  unenviable  celebrity  in  the  reign 
of  Edward  II. ;  but  he  is  now  honorably  represented  by 
the  present  Baroness  le  Despencer,  and  some  of  the  most 
illustrious  of  the  nobility  of  England  are  descended  from 
him. 

We  need  not  be  long  delayed  by  Philip  Basset,  the 
rival  Chief  Justiciar.  He  was  of  the  great  family  of  that 
name  which  I  have  before  mentioned,  and  which  occurs 
much  more  frequently  than  any  other  name  in  our  judi- 
cial annals.  He  began  his  political  life  in  opposition, 
being  associated  with  the  Barons  under  De  Montfort ; 
but  he  soon  went  over  to  the  Court,  and  became  a 
special  favorite  of  the  feeble  Henry.  He  was  enriched 
by  grants  of  various  wardships,  forfeitures,  and  shrieval- 
ties ;  was  constituted  governor  of  the  castles  of  Oxford, 


1266.]  PHILIP  BASSET.  61 

Bristol,  Corff,  and  Shireburn,  and  managed  all  the  affairs 
of  the  King  of  the  Romans.  He  had  a  very  uneasy 
place  as  Chief  Justiciar,  but  there  was  an  interval  while 
he  enjoyed  the  title  when  he  actually  was  allowed  to 
perform  the  duties  of  the  office,  and  during  a  short  ab- 
sence of  the  King  in  Gascony,  he  acted  as  Regent  of 
the  kingdom.1  The  royal  cause  declining,  his  house 
in  Westminster  was  burned  by  his  rival,  and  he  was 
obliged  to  fly  for  safety.  At  the  Battle  of  Lewes  he 
fought  bravely  in  the  royal  cause,  and  he  resisted  the 
victorious  rebels  sword  in  hand,  until  he  fell  from  loss 
of  blood,  when  he  was  taken  prisoner  along  with  his 
Sovereign.  He  was  then  placed  in  Dover  Castle,  and 
kept  a  close  prisoner  there  in  the  care  of  a  younger  son 
of  the  Earl  of  Leicester,  till  he  was  liberated  on  the  final 
overthrow  of  that  chieftain.  It  was  generally  thought 
that  he  would  be  restored  to  his  office  of  Chief  Justiciar ; 
but  the  resolution  had  been  taken  to  reform  it,  and,  till 
this  object  should  be  fully  accomplished,  the  more  pru- 
dent course  seemed  to  be  to  fill  it  with  a  man  who  was 
well  acquainted  with  the  administration  of  justice,  and 
who  never  could  be  formidable  as  a  military  leader. 
However,  the  ex-Chief  Justiciar  continued  to  enjoy  the 
royal  favor.  He  was  one  of  those  appointed  to  carry 
into  execution  the  "  Dictum  of  Kenilworth,"  and  he 
continued  a  member  of  the  King's  Council  till  his  death. 
This  must  have  happened  in  the  autumn  of  1271  ;  for  in 
the  Fine  Roll,  under  date  2d  November,  56  Henry  III., 
there  is  an  entry  of  an  order  for  the  Constable  of  the 
castle  of  Devizes  ,to  give  it  up  to  Elyas  de  Rabeyn, 
"  because  Philip  Basset,  his  lord,  is  gone  the  way  of  all 
flesh." 

He  is  reckoned  by  some  antiquaries  the  last  of  the 
true  Chief  Justiciars,  as  they  consider  Hugh  le  Despencer 
an  usurper  of  the  office  between  the  battle  of  Lewes  and 
the  battle  of  Evesham,  and  they  hold  that  its  character 
was  entirely  altered  before  the  conclusion  of  this  reign.* 

1  Still  he  went  through  the  routine  business  of  his  office,  and  all  the  man- 
dates on  the  Fine  Roll  are  signed  by  him. — Rot.  Fin.  ii.  278-385. 

4  Dugdale  says,  "  Of  those  who  had  the  office  of  Justiciarius  Anglise, 
Philip  Basset  was  the  last,  the  King's  Bench  and  Common  Pleas  having 
afterwards  one  in  each  court." — Or.  Jur.  p.  20 :  and  see  Spel.  Gloss,  p.  342 


62  REIGN  OF HENR Y  1*  1.  \i 205— 

I  wish  that  I  could  have  been  justified  in  concluding 
the  list  of  Chief  Justiciars  with  Simon  de  Montfort  him- 
self; a  life  of  him  might  be  made  most  interesting  and 
instructive,  for  not  only  did  he  achieve  wonderful  adven- 
tures by  political  intrigue  and  by  military  skill,  and  meet 
with  striking  vicissitudes  of  fortune,  but  he  is  to  be 
honored  as  the  founder  of  a  representative  system  of 
government  in  this  country,  and  the  chief  framer  of  that 
combination  of  democracy  with  monarchy  and  aristoc- 
racy which  has  served  as  a  model  for  all  modern  nations 
among  whom  freedom  has  flourished.  I  might  make  a 
pretense  for  an  attempt  to  narrate  his  exploits  and  de- 
lineate his  character,  for  he  has  been  introduced  among 
the  Chief  Justiciars  ;  and  three  records  are  quoted,  bear- 
ing date  respectively  loth  May,  7th  June,  and  8th  June, 
1265,  in  which  the  Earl  of  Leicester  is  styled  "  Justici- 
arius,"  which,  possibly,  might  mean  "  Justiciarius 
Anglise,"  the  title  by  which  Bigod,  Le  Despencer,  and 
Basset  were  sometimes  designated  when  they  undoubt- 
edly filled  the  highest  office  in  the  law.  But  an  attentive 
examination  of  these  records  will  show  that  he  had  only 
sat  on  a  special  commission  :  there  is  no  proof  that  he 
ever  was  appointed  to  the  office  of  Chief  Justiciar,  or 
acted  in  it ;  and  there  is  no  period  to  which  his  tenure 
of  the  office  can  be  ascribed,  except  when,  with  his 
entire  concurrence,  it  was  filled  by  Hugh  le  Despencer, 
his  partisan  and  dependent.  When  he  called  his  famous 
parliament,  with  representatives  from  counties  and  bor- 
oughs to  mingle  in  legislation  with  the  hereditary  nobil- 
ity, he  might  easily  have  assumed  the  office  of  Chief 
Justiciar  if  he  had  been  so  inclined;  but,  on  the  con- 
trary, he  seems,  with  other  constitutional  improvements, 
to  have  meditated  its  abolition  or  reform,  and  there  is 
great  reason  to  .believe  that  he  suggested  the  new  judicial 
system  which  was  fully  adopted  and  established  in  the 
succeeding  reign,  and  under  which  justice  is  administered 
at  this  day  in  England.1 

After  the  Barons  had  been  effectually  crushed,  a  partial 
trial  of  this  system  was  made  during  the  remainder  of 
the  life  of  the  feeble  Henry,  with  the  sanction  of  his 

1  Spelman,  342  ;  Brady's  England,  i.  650,  651  ;  Rot.  Fin.  ii.  405  ;  Leland'i 
Coll.  ii.  378 ;  Lives  of  Chancellors,  i.  ch.  ix. 


1268.]  HENRY  DE  BRACTON.  63 

energetic  son,  who,  before  setting  forth  for  Palestine, 
established  a  wise  system  of  administration — a  foretaste 
of  his  own  happy  reign.  From  the  confusion  introduced 
by  the  Barons'  wars,  and  the  consequent  defective  state 
of  our  records  at  that  era,  a  doubt  has  been  started 
whether  the  office  of  Chief  Justiciar  was  filled  up  be- 
tween the  death  of  Hugh  le  Despencer,  in  August,  1265, 
and  March,  1268,  when  Robert  de  Bruswas  appointed  to 
it.  There  is,  however,  strong  reason  to  believe  that  in 
this  interval  it  was  held  by  Henry  de  Bracton,  one  of 
the  greatest  jurists  who  ever  lived  in  any  age  or  any 
country.  He  was,  undoubtedly,  a  Justiciar  at  this 
time  :  in  the  commissions  in  which  his  name  is  mentioned' 
no  one  had  precedence  of  him  ;  and  we  have  the  author- 
ity of  Lord  Ellesmere  and  others,  who  have  carefully 
investigated  the  subject,  for  concluding  that  he  was 
Chisf  Justiciar. 

It  would  be  a  matter  of  the  highest  interest  to  know 
how  a  man  so  enlightened  and  accomplished  was  formed 
during  the  very  darkest  period  of  English  history,  when 
the  civilization  introduced  by  the  Normans  seemed  to  be 
entirely  obliterated,  and  when  the  amalgamation  of  races 
in  this  country  had  not  yet  begun  to  produce  the  native 
energy  and  refinement  which  afterwards  sprang  from  it  : 
but  while  we  have  the  pedigree,  at  least  up  to  the  Con- 
quest, and  a  minute  account  of  the  military  exploits  of 
those  who  were  employed  in  desolating  the  world,  we 
have  no  information  whatever  of  the  origin,  and  very 
little  of  the  career,  of  a  man  who  explained  to  his  savage 
countrymen  the  benefits  to  be  derived  from  an  equitable 
system  of  laws  defining  and  protecting  the  rights  of 
every  class  of  the  community, — who,  drawing  his  senti- 
ments from  the  rich  fountain  of  Roman  jurisprudence, 
expressed  them  in  the  Latin  tongue  with  a  purity  seldom 
reached  by  the  imitators  of  the  Augustan  age,  and  who 
was  rivaled  by  no  English  juridicial  writer  till  Black- 
stone  arose  five  centuries  afterwards.  He  is  said,  on 
uncertain  authority,  to  have  studied  at  Oxford,  and 
there  to  have  obtained  the  degree  of  Doctor  of  both 
laws.  We  know  that  he  had  taken  holy  orders,  for,  by 
letters  patent,  granting  to  him  a  house  during  the  minor- 
ity of  the  heir,  he  is  designated  "  dilectus  clericus 


64  REIGN  OF  HENRY  III.  [1250. 

noster."  He  is  supposed  to  have  practiced  in  the  com- 
mon law  courts  of  Westminster,  and  he  certainly  must 
have  had  great  practical  experience  in  juridical  pro- 
cedure, as  well  as  a  profound  scientific  knowledge  of 
jurisprudence  in  all  its  departments.  But  we  are  not 
clearly  informed  of  any  part  of  his  professional  career 
till  we  find  that,  in  the  year  1245,  he  was  appointed  a 
Justice  Itinerant  for  the  counties  of  Nottingham  and 
Derby,  and  in  the  following  year  for  the  northern 
counties.  Such  employment  was  compatible  with  his 
continuing  to  practice  as  a  barrister  during  the  terms, 
and  his  name  does  not  appear  in  the  Fine  Rolls  till  four 
years  later.  He  then  certainly  was  a  Justiciar  or  Judge 
of  the  Aula  Regis,  and  so  he  continued  for  many  years.1 

The  probability  is,  that  he  was  promoted  to  be  Chief 
Justiciar  in  1265,  soon  after  the  battle  of  Evesham,  and 
that  he  held  the  office  till  he  died  in  the  end  of  the  year 
1267.  All  notice  of  him  in  the  Rolls  then  ceases,  and 
we  certainly  know  that  another  Chief  Justiciar  was  ap- 
pointed in  the  beginning  of  1268.  We  have  no  infor- 
mation respecting  his  descendants,  although  the  greatest 
nobles  in  England  might  have  been  proud  to  trace  him 
in  their  line. 

His  memory  will  be  preserved  as  long  as  the  law  of 
England,  by  his  work,  "  De  Legibus  et  Consuetudinibus 
Angliae."  It  must  have  been  finished  just  about  the 
time  when  he  is  supposed  to  have  been  Chief  Justiciar, 
for  it  contains  references  to  changes  in  the  law  intro- 
duced shortly  before,  and  it  takes  no  notice  of  the  stat- 
ute of  Marlbridge,  which  passed  in  the  $2nd  year  of 
Henry  III.  The  chief  defect  imputed  to  the  work  is  its 
frequent  introduction  of  the  Roman  civil  law;  but  this 
will  be  found  to  be  by  way  of  illustration,  not  as  author- 
ity ;  and  there  seems  great  reason  to  regret  that  the  pre- 
judices of  English  lawyers  in  all  ages  have  inclined  them 
to  confine  their  attention  almost  exclusively  to  the  tech- 
nicalities of  their  own  peculiar  code, — ever  more  dis- 
tinguished for  precision  than  for  enlarged  principles. 
Th,e  work  we  are  considering  certainly  gives  a  complete 

1  He  is  sometimes  named  Bratton,  and  sometimes  Bretton,  in  the  Rolls ; 
but  these  are  distinctly  proved  to  be  the  identical  Henry  de  Bracton  of 
whom  we  are  treating. 


1268.]  ROBERT  DE  BRUS.  65 

view  of  the  municipal  law  of  England  in  all  its  titles  as 
it  stood  when  the  author  wrote ;  and  for  systematic  ar- 
rangement, for  perspicuity,  and  for  nervousness,  it  can- 
not be  too  much  admired.1 

I  now  come  to  a  "  CHIEF  "  who,  we  certainly  know  by 
existing  records,  was  appointed  "  CAPITATIS  JUSTICIAR- 
TUS  AD  PLACITA  CORAM  REGE  TENENDA,"  the  modern 
designation  of  the  presiding  Judge  in  the  Court  of 
King's  Bench  ;  and  he  is  placed  by  Dugdale  at  the  head 
of  the  new  list,  who  have  exercised  merely  judicial  func- 
tions. However,  there  had  been  no  law  passed  by  the 
Legislature  since  MAGNA  CHARTA  to  change  our  judicial 
system ;  and,  although  a  separate  tribunal  now  existed 
for  civil  suits,  there  is  reason  to  think  that  the  AULA 
REGIS  continued  till  the  accession  of  Edward  I.  without 
any  farther  statutable  alteration,  there  being  merely  an 
understanding  that  the  person  who  presided  in  it  was  no 
longer  to  interfere  in  military  affairs  or  in  the  govern- 
ment of  the  kingdom,  whether  the  sovereign  was  at 
home  or  abroad. 

The  choice  made  of  a  Chief,  who  was  to  be,  like  Brae- 
ton,  a  mere  civilian,  seems  a  curious  one  ;  for,  instead  of 
a  lawyer,  born  in  obscurity,  who  had  pushed  himself 
into  notice  by  success  in  his  profession,  he  was  the  head 
of  a  great  Norman  baronial  house ;  he  had  in  his  veins 
the  blood  of  the  Kings  of  Scotland;  be  enjoyed  large 
possessions  in  that  kingdom ;  he  was  in  the  succession 
to  a  throne  ;  he  actually  became  a  competitor  for  it  ;  his 
grandson,  after  giving  the  English  the  severest  defeat 
they  ever  sustained,  swayed  the  sceptre  with  glory  and 
felicity;  and  our  gracious  Queen,  Victoria,  in  tracing 
her  line  to  the  Conqueror,  and  to  Cerdic,  counts  this 
Chief  Justiciar  among  her  ancestors. 

Robert  de  Brus,  or  Bruis,  (in  modern  times  spelt 
Bruce,}  was  one  of  the  companions  of  the  Conqueror; 
and  having  particularly  distinguished  himself  in  the 
battle  of  Hastings,  his  prowess  was  rewarded  with  no 
fewer  than  ninety-four  lordships,  of  which  Skelton,  in 
Yorkshire,  was  the  principal.  The  Norman  knights, 
having  conquered  England  by  the  sword,  in  the  course 

*  See  Reeves's  Hist,  of  Eng.  Law,  ii.  86,  281  ;  Lives  of  Chancellors,  i.  ch. 
ix ;  2.  St.  Tr.  693  ;  Rot.  Cl.  ii.  77  ;  Rot.  Fin.  82—458 
1—5- 


66  REIGN   OF  HENRY  III.  [1268. 

of  a  few  generations  got  possession  of  a  great  part  of 
Scotland  by  marriage.  They  were  far  more  refined 
and  accomplished  than  the  Caledonian  thanes ;  and, 
flocking  to  the  court  of  the  Scottish  Kings,  where  they 
made  themselves  agreeable  by  their  skill  in  the  tourna- 
ment, and  in  singing  romances,  they  softened  the  hearts 
and  won  the  hands  of  all  the  heiresses.  Hence  the 
Scottish  nobility  are  almost  all  of  Norman  extraction  • 
and  most  of  the  great  families  in  that  kingdom  are  to 
be  traced  to  the  union  of  a  Celtic  heiress  with  a  Nor- 
man knight.  Robert,  the  son  of  the  first  Robert  de 
Brus,  whom  we  have  commemorated,  having  married 
early,  and  had  a  son,  Adam,  who  continued  the  line  of 
De  Brus,  of  Skelton,  became  a  widower  while  still  a 
young  man,  and,  to  assuage  his  grief,  paid  a  visit  to 
Alexander  I.,  then  King  of  Scots,  who  was  keeping  his 
court  at  Stirling.  There  the  beautiful  heiress  of  the 
immense  lordship  of  Annandale,  one  of  the  most  con- 
siderable fiefs  held  of  the  Crown,  fell  in  love  with  him ; 
and  in  due  time  he  led  her  to  the  altar.  A  Scottish 
branch  of  the  family  of  De  Brus  was  thus  founded 
under  the  designation  of  Lords  of  Annandale.  The 
fourth  in  succession  was  "  Robert  the  Noble,"  and  he 
raised  the  family  to  much  greater  consequence  by  a 
royal  alliance,  for  he  married  Isabel,  the  second  daugh- 
ter of  Prince  David,  Earl  of  Huntingdon,  grandson  of 
David  I.,  sometimes  called  St.  David,  and  said  to  have 
been  "  a  sore  saint  to  the  Crown,"  from  the  number  of 
monasteries  he  had  endowed  from  the  royal  domains.1 
Robert  De  Brus,  the  subject  of  this  sketch,  was  their 
eldest  son. 

From  the  time  of  William  the  Conqueror  and  Mal- 
colm Canmore,  until  the  desolating  wars  occasioned  by 
the  dispute  respecting  the  right  of  succession  to  the 
Scottish  crown,  England  and  Scotland  wene  almost  per- 
petually at  peace  ;  and  there  was  a  most  familiar  and 
friendly  intercourse  between  the  two  kingdoms,  inso- 
much that  nobles  often  held  possessions  in  both,  and 
not  unfrequently  passed  from  the  service  of  the  one 
government  into  that  of  the  other.  Thus  we  account 

1  Four  of  these  are  within  a  few  miles  from  the  spot  where  I  am  now 
writing — Jedburgh,  Melrose,  Dryburgh,  and  Kelso, 


1224.]  ROBERT  DE  BRUS.  67 

for  the  exact  uniformity  of  the  laws  of  the  two  nations, 
which  is  so  great  that  Scottish  antiquaries  have  con- 
tended that  their  code,  entitled  "  Regiam  Majestatem," 
was  copied  by  the  English  ;  although  there  can  be  no 
reasonable  doubt  that  the  northern  and  more  barbarous 
people  were  the  borrowers. 

Our  Robert,  son  of  "  Robert  the  Noble"  and  the  Scot- 
tish Princess,  was  born  at  the  Castle  of  Lockmaben,  about 
the  year  1224.  The  Skelton  branch  of  the  family  still 
flourished,  although  it  became  extinct  in  the  next  gen- 
eration by  the  death,  without  issue  male,  of  Peter  de 
Brus,  the  eighth  in  descent  from  Robert  who  fought  at 
Hastings.  At  this  time  a  close  intercourse  was  kept  up 
between  "  Robert  the  Noble  "  and  his  Yorkshire  cousins  ; 
and  he  sent  his  heir  to  be  educated  in  the  south  under 
their  auspices.  It  is  supposed  that  the  youth  studied 
at  Oxford  ;  but  this  fact  does  not  rest  on  any  certain 
authority.  In  1245,  his  father  died,  and  he  succeeded 
to  the  lordship  of  Annandale.  One  would  have  ex- 
pected that  he  would  now  have  settled  on  his  feudal 
principality,  exercising  the  rights  of  furca  et  fossa,  or 
"  pit  and  gallows,"  which  he  possessed  without  any  limit 
over  his  vassals ;  but  by  his  English  education  he  had 
become  quite  an  Englishman,  and,  paying  only  very  rare 
visits  to  Annandale,  he  sought  preferment  at  the  court 
of  Henry  III.  What  surprises  us  still  more  is,  that  he 
took  to  the  gown,  not  to  the  sword  ;  and  instead  of  be- 
ing a  great  warrior,  like  his  forefathers  and  his  descend- 
ants, his  ambition  seems  to  have  been  to  acquire  the 
reputation  of  a  great  lawyer.  There  can  be  little  doubt 
that  he  practiced  as  an  advocate  in  Westminster  Hall 
from  1245  till  1250.  In  the  latter  year,  we  certainly 
know  that  he  took  his  seat  on  the  bench  as  a  Puisne 
Judge,  or  Justiciar;  and,  from  thence  till  1263,  extant 
records  prove  that  payments  were  made  for  assizes  to  be 
taken  before  him, — that  he  acted  with  other  Justiciars 
in  the  levying  of  fines, — and  that  he  went  circuits  as 
senior  judge  of  assize.  In  the  46th  year  of  Henry  III. 
he  had  a  grant  of  £40  a  year  salary,  which  one  would 
have  supposed  could  not  have  been  a  great  object  to  the 
Lord  of  Annandale.  In  the  Barons'  wars,  he  was  always 
true  to  the  King ;  and  although  he  had  no  taste  for  the 


68  REIGN  OF  HENRY  III.  [1272. 

military  art,  he  accompanied  his  royal  master  into  the 
field,  and  was  taken  prisoner  with  him  at  the  battle  of 
Lewes. 

The  royal  authority  being  re-established  by  the  vic- 
tory at  Evesham,  he  resumed  his  functions  as  a  Puisne 
Judge  ;  and  for  two  years  more  there  are  entries  proving 
that  he  continued  to  act  in  that  capacity.  At  last,  on 
the  8th  of  March,  1268,  52  Henry  III.,  he  was  appointed 
"  Capitalis  Justiciarius  ad  placita  coram  Rege  tenenda." 
Unless  his  fees  or  presents  were  very  high,  he  must  have 
found  the  reward  of  his  labors  in  his  judicial  dignity,  for 
his  salary  was  very  small.  Hugh  Bigod  and  Hugh  le 
Despencer  had  received  1000  marks  a  year  "  ad  se  sus- 
tentandum  in  officio  Capitalis  Justitiarii  Angliae,"  but 
Chief  Justice  de  Brus  was  reduced  to  100  marks  a  year. 
Such  delight  did  he  take  in  playing  the  Judge,  that 
he  quietly  submitted  both  to  loss  of  power  and  loss 
of  profit. 

He  remained  Chief  Justice  till  the  conclusion  of  this 
reign,  a  period  of  four  years  and  a  half,  during  which  he 
alternately  went  circuits  and  presided  in  Westminster 
Hall.  None  of  his  decisions  have  come  down  to  us,  and 
we  are  very  imperfectly  informed  respecting  the  nature 
of  the  cases  which  came  before  him.  The  boundaries 
of  jurisdiction  between  the  Parliament,  the  Aula  Regis, 
and  the  rising  tribunal  afterwards  called  the  Court  of 
King's  Bench,  seem  to  have  been  then  very  much  un- 
defined. 

On  the  demise  of  the  Crown,  Robert  de  Brus  was  de- 
sirous of  being  re-appointed ;  but  it  was  resolved  to  fill 
the  office  with  a  regularly  trained  lawyer,  and  there  is 
reason  to  fear  that  he  was  not  much  better  qualified  for 
it  than  the  military  chiefs  who  had  presided  in  the 
AULA  REGIS  before  the  common  law  of  England  was 
considered  a  science.  He  was  so  much  mortified  by 
being  passed  over,  that  he  resolved  to  renounce  Eng- 
land forever;  and  he  would  not  even  wait  to  pay  his 
duty  to  Edward  I.,  now  returning  from  the  holy  wars. 

The  ex-Chief  Justice  posted  off  for  his  native  country, 
and  established  himself  in  his  castle  of  Lochmaben, 
where  he  amused  himself  by  sitting  in  person  in  his 
court  baron,  and  where  all  that  he  laid  down  was,  no 


I29I.J  ROBERT  DE  BRUS.  69 

doubt,  heard  with  reverence,  however  lightly  his  law 
might  have  been  dealt  with  in  Westminster  Hall.  Oc- 
casionally, he  paid  visits  to  the  court  of  his  kinsman, 
Alexander  III.,  but  he  does  not  appear  to  have  taken 
any  part  in  Scottish  politics  till  the  untimely  death  of 
that  monarch,  which,  from  a  state  of  peace  and  pros- 
perity, plunged  the  country  into  confusion  and  misery. 

There  was  now  only  the  life  of  an  infant  female,  re- 
siding in  a  distant  land,  between  him  and  his  plausible 
claim  to  the  Scottish  crown.  He  was  nominated  one  of 
the  negotiators  for  settling  the  marriage  between  her 
and  the  son  of  Edward  I.,  which,  if  it  had  taken  place, 
would  have  entirely  changed  the  history  of  the  island  of 
Great  Britain.  From  his  intimate  knowledge  both  of 
Scotland  and  England,  it  is  probable  that  the  "Articles" 
were  chiefly  of  his  framing,  and  it  must  be  allowed  that 
they  are  just  and  equitable.  For  his  own  interest,  as 
well  as  for  the  independence  of  his  native  country,  he 
took  care  to  stipulate  that,  "  failing  Margaret  and  her 
issue,  the  kingdom  of  Scotland  should  return  to  the 
nearest  heirs,  to  whom  of  right  it  ought  to  return, 
wholly,  freely,  absolutely,  and  without  any  subjection.'" 

The  Maid  of  Norway  having  died  on  her  voyage 
home,  the  ex-Chief  Justice  immediately  appeared  at 
Perth  with  a  formidable  retinue,  and  was  in  hopes  of 
being  immediately  crowned  King  at  Scone ; — and  he 
had  nearly  accomplished  his  object,  for  John  Baliol,  his 
most  formidable  competitor  in  point  of  right,  always 
feeble  and  remiss  in  action,  was  absent  in  England. 
But,  from  the  vain  wish  to  prevent  future  disputes  by 
a  solemn  decision  of  the  controversy  after  all  parties 
should  have  been  heard,  the  Scotch  nobility  in  an  evil 
hour  agreed  to  refer  it,  according  to  the  fashion  of  the 
age,  to  the  arbitration  of  a  neighboring  sovereign  ;  and 
fixed  upon  Edward  I.  of  England,  their  wily  neighbor. 

It  is  a  great  reproach  to  the  memory  of  the  ex-Chief 
Justice  that,  at  the  famous  meeting  on  the  banks  of  the 

1  Some  historians,  both  English  and  Scotch,  have  supposed  that  the 
Robert  Bruce  employed  in  this  negotiation  was  the  son  of  the  Chief  Justice 
who  so  romantically  became  Earl  of  Carrick,  by  being  forced  by  the  heiress 
of  that  great  domain  to  marry  her ;  but  Lord  Hales  clearly  proves  that  tt 
was  Robert  the  father. — See  Dalrymple's  Annals,  i.  198,  204. 


70  REIGN  OF  EDWARD  I.  [1292. 

Tweed,  when  the  English  Chancellor,  in  the  presence  of 
the  notables  of  both  nations,  asked  him  "  whether  he 
acknowledged  Edward  as  Lord  Paramount  of  Scotland, 
and  whether  he  was  willing  to  ask  and  receive  judgment 
from  him  in  that  character,  he  expressly,  definitively, 
and  absolutely  declared  his  assent."1 

He  aftenvards  pleaded  his  own  cause  with  great  dex- 
terity, and  many  supposed  that  he  would  succeed. 
Upon  the  doctrine  of  representation,  which  is  familiar  to 
us,  Baliol  seems  clearly  to  have  the  better  claim,  as  he 
was  descended  from  the  eldest  daughter  of  the  Earl  of 
Huntingdon  :  but  Bruce  was  one  degree  nearer  the  com- 
mon stock  ;  and  this  doctrine,  which  was  not  then  firmly 
established,  had  never  been  applied  to  the  descent  of 
the  crown.8 

When  Edward  I.  determined  in  favor  of  Baliol,  influ- 
enced probably  less  by  the  arguments  in  his  favor  than 
by  the  consideration  that  from  the  weakness  of  his  char- 
acter he  was  likely  to  be  a  more  submissive  vassal, 
Robert  de  Brus  complained  bitterly  that  he  was  wronged, 
and  resolutely  refused  to  acknowledge  the  title  of  his 
rival.  He  retired  in  disgust  to  his  castle  of  Lochmaben, 
where  he  died  in  November,  1295,  in  the  seventy-second 
year  of  his  age. 

While  resident  in  England  he  had  married  Isabel, 
daughter  of  Gilbert  de  Clare,  Earl  of  Gloucester,  by 
whom  he  had  several  sons.  Robert,  the  son  of  Robert 
the  eldest,  became  Robert  I.,  and  one  of  the  greatest  of 
heroes.  The  descent  of  the  crown  through  him  to  the 
Stuarts  is,  of  course,  universally  known.  The  family  of 
the  Chief  Justice  is  still  kept  up  in  the  male  line  by  the 
descendants  of  his  younger  son,  John,  among  whom  are 
numbered  the  Earl  of  Elgin,  the  Earl  of  Cardigan,  and 
the  Marquess  of  Aylesbury.8 

1  R.  Feed.  vol.  ii.  545. 

*  See  Dalrymple's  Aunals,  i.  215 — 243. 

*  See  Dug.  Chr.  Ser.  Rot.  Fin.  ii  79.  545     Dug.  Bar.  Coll.  Peerage. 


CHAPTER  II. 

THE  LIVES  OF  THE  CHIEF  JUSTICES  FROM  THE  ACCES- 
SION OF  EDWARD  I.  TO  THE  APPOINTMENT  OF 
CHIEF  JUSTICE   TRESILIAN. 

WE  now  arrive  at  the  aera  when  our  judicial  insti- 
tutions were  firmly  established  on  the  basis  on 
which,  with  very  little  alteration,  they  have 
remained  to  the  present  day.  Although  the  AULA 
REGIS  had  existed  down  to  the  conclusion  of  the  reign 
of  Henry  III.,  and  cases  of  peculiar  importance  or  diffi- 
culty were  decided  before  the  Chief  Justiciar,  assisted 
by  the  great  officers  of  state,1  it  had  gradually  ceased  to 
be  a  court  of  original  jurisdiction,  and  it  had  been 
separating  into  district  tribunals  to  which  different  classes 
of  causes  were  assigned.  Edward  I.,  our  JUSTINIAN, 
now  not  only  systematized  and  reformed  the  principles 
of  English  jurisprudence,  but  finally  framed  the  courts 
for  the  administration  of  justice  as  they  have  subsisted 
for  six  centuries.  "  In  his  time  the  law  did  receive  so 
sudden  a  perfection,  that  Sir  Matthew  Hale  does  not 
scruple  to  affirm  that  more  was  done  in  the  first  thirteen 
years  of  his  reign  to  settle  and  establish  the  distributive 
justice  of  the  kingdom,  than  in  all  the  ages  since  that 
time  put  together."8  The  AULA  REGIS  he  utterly  abol- 

1  A  remnant  of  the  Aula  Regis  subsisted  to  our  own  time  in  the  "  Ex- 
chequer Chamber,"  into  which  cases  of  great  importance  and  difficulty 
continued  to  be  adjourned,  to  be  argued  before  all  the  judges.  The  practice 
of  judges  reserving  points  of  criminal  law  arising  before  them  on  the 
circuit,  I  consider  as  having  had  a  similar  origin.  The  rule  which  prevailed 
— that  both  in  civil  and  criminal  cases  the  opinions  of  the  majority  of  the 
judges  in  the  Exchequer  Chamber  should  overrule  the  opinions  of  the  ma- 
jority  of  the  judges  in  the  court  in  which  the  cases  originated,  and  in  which 
formal  judgment  was  to  be  given — admits  of  no  other  solution. 

*  4  Bl.  Com.  425  ;  Hale's  Hist.  C.  L.  p.  162. 


72  REIGN  OF  EDWARD  I.  [1272. 

ished  as  a  court  of  justice ;  and  he  decreed  that  there 
should  no  longer  be  a  Justiciar  with  military  and  politi- 
cal as  well  as  judicial  functions.  "  The  Court  of  our 
Lord  the  King  before  the  King  himself,"  or  "  Court  of 
King's  Bench,"  was  constituted.  Here  the  King  was 
supposed  personally  to  preside,  assisted  by  the  first 
common  law  judge,  denominated  "  Chief  Justice,  as- 
signed to  hold  pleas  in  the  Court  of  our  Lord  the  King 
before  the  King  himself,"  and  by  other  justices  .or 
"  puisne  judges."  This  was  the  supreme  court  of  crimi- 
nal jurisdiction,  and  was  invested  with  a  general  super- 
intendence over  inferior  tribunals.  MAGNA  CHARTA  had 
enacted  that  civil  actions  should  be  tried  before  judges 
always  sitting  in  the  same  place,  so  that  the  suitors 
might  not  be  compelled  to  follow  the  King  in  his  migra- 
tions to  the  different  cities  in  his  dominions ;  and  the 
section  of  the  AULA  REGIS  which  had  subsequently  sat 
at  Westminster  now  became  the  "  Court  of  Common 
Picas,"  having  a  Chief  Justice  and  Puisnies,  with  an  ex- 
clusive jurisdiction  which  it  still  preserves  over  "  real 
actions," — although,  by  ingenious  fictions,  other  courts 
stripped  it  of  much  of  its  business  in  the  trial  of  "  per- 
sonal actions."  The  management  of  the  estates  and 
revenues  of  the  Crown  had  been  early  intrusted  to  cer- 
tain members  of  the  AULA  REGIS,  who  were  called 
"  Barons  of  the  Exchequer."  They  now  formed  an 
entirely  separate  tribunal  called  the  "  Court  of  Ex- 
chequer," with  the  Lord  Treasurer  and  the  Chancellor 
of  the  Exchequer  to  preside  over  them — being  in  strict- 
ness confined  merely  to  fiscal  matters  in  which  the 
Crown  was  concerned,  but  gradually  usurping  both  legal 
and  equitable  jurisdiction  between  subject  and  subject, 
by  countenancing  the  fiction  that  the  suitors  were  the 
King's  debtors,  or  the  King's  accountants.  The  Chan- 
cellor, from  being  the  sixth  in  precedence  of  the  great 
officers  of  state,  was  now  advanced  to  be  the  first,  and 
he  was  intrusted  with  the  power  of  doing  justice  to  the 
subject  where  no  remedy  was  provided  by  the  common 
law.  The  appellate  jurisdiction  of  the  AULA  REGIS  was 
vested  in  the  great  council  of  the  nation  now  called  the 
Parliament,  and,  on  the  division  of  the  legislature  into 
two  chambers  which  soon  followed,  remained  with  the 


1278.]  RALPH  DE  HENGHAM.  73 

Lords  Spiritual  and  Temporal,  who  had  the  Judges  as 
their  assessors. 

All  juridical  knowledge  was  long  monopolized  by  the 
clergy  ;  but  while  the  civil  and  canon  law  continued  to  be 
cultivated  by  them  exclusively,  a  school  of  municipal  or 
common  law  had  been  established  for  laymen,  who  grad- 
ually formed  themselves  into  societies  called  "  Inns  of 
Court,"  devoting  their  lives  to  legal  pursuits.  From  the 
body  of  professional  men  thus  trained,  Edward  resolved 
to  select  his  Judges ;  and  he  appointed  RALPH  DE 
HENGHAM  Chief  Justice  of  the  King's  Bench,  and 
THOMAS  DE  WEYLAND  Chief  Justice  of  the  Common 
Pleas,  allowing  them  a  salary  of  only  sixty  marks  a  year, 
but  adding  a  small  pittance  to  purchase  robes,  and  stim- 
ulating their  industry  by  fees  on  the  causes  they  tried. 

The  De  Henghams  had  long  been  settled  at  Thetford 
in  Norfolk  ;  and  the  head  of  the  family,  towards  the  end 
of  the  reign  of  Henry  III.,  had  gained  distinction  as  a 
knight  in  several  passages  of  arms,  had  been  a  Judge  in 
the  AULA  REGIS,  and  had  acted  as  a  Justice  in  Eyre. 
Ralph,  a  younger  son  of  his,  having  a  greater  taste  for 
law  than  for  military  exercises,  was,  while  yet  a  boy, 
placed  iu  the  office  of  a  prothonotary  in  London,  and 
not  only  made  himself  master  of  the  procedure  of  the 
courts,  but  took  delight  in  perusing  Glanville,  Bracton, 
and  Fleta,  which,  in  those  simple  and  happy  times,  com- 
posed a  complete  law  library.  Without  the  clerical  ton- 
sure, he  became  a  candidate  for  business  at  the  bar ;  but 
such  was  the  belief,  that  the  characters  of  causidiciis  and 
clericus  must  be  united,  that,  to  further  his  success,  he 
was  obliged  to  take  holy  orders,  and  he  was  made  a  can- 
on of  St.  Paul's.1  His  reputation  in  Westminster  Hall 
was  now  greater  than  that  of  any  man  of  his  time ;  and 
while  he  was  little  more  than  thirty  years  of  age,  on  the 
principle  of  deter  digniori  he  was  made  Chief  Justice  of 
the  Court  of  King's  Bench,  and  received  the  honor  of 
knighthood. 

He  fully  answered  the  expectation  which  had  been 
formed  of  him  for  industry,  learning,  and  ability.  His 

1  It  was  to  conceal  the  want  of  clerical  tonsure,  that  the  sergeants-at-law, 
who  soon  monopolized  the  practice  of  the  Court  of  Common  Pleas,  adopted 
the  coif,  or  black  velvet  cap,  which  became  the  badge  of  their  order. 


74  REIGN  OF  EDWARD  I.          .    [1278-. 

great  object  was  to  establish  a  regular  procedure  in  his 
court  calculated  to  expedite  suits  and  to  prevent  fraud. 
He  began  with  publishing  a  collection  of  writs  which  he 
had  carefully  made  and  revised,  known  by  the  name  of 
REGISTRUM  BREVIUM,  and  pronounced  by  Lord  Coke 
to  be  "  the  most  ancient  book  on  the  law."1  Next,  he 
composed  an  original  work,  which  is  still  extant,  and 
quoted  in  Westminster  Hall  as  the  "  Summae  of  Lord 
Chief  Justice  Hengham."  It  is  written  in  Latin,  and 
divided  into  two  books,  called  "  Hengham  Magna  "  and 
"  Hengham  Parva,"  giving  instructions  with  regard  to 
the  mode  of  conducting  actions,  particularly  writs  of 
right,  of  dower,  and  of  assize,  from  the  prcecipe  to  the 
execution  of  the  judgment.  It  continued  in  the  MS.  till 
the  reign  of  James  I.,  when  it  was  printed  and  published 
with  the  following  title-page  : 

"  RADULPHI 

de 

HENGHAM 

EDWARDI  Regis  I. 

Capitalis  olim  Justitiarii 

SUMM/E. 

Magna  Hengham  et  Parva  vulgo 

nuncupate,  nunc  priminn  ex  vet.  Codd. 

MSS.  lucem  prodcunt. 

LONDINI. 

Bibliopolarum  Corf  on  excttditur. 
M.DC.XVI." 

The  Latinity  is  barbarous  even  for  a  lawyer,  and  the 
arrangement  not  very  good.  From  a  quaint  analogy  to 
the  Mosaic  account  of  the  creation,  he  supposes  the 
work  of  conducting  a  suit  to  be  divided  into  six  days ; 
and  he  describes  what  is  to  be  done  each  day — in  "  cast- 
ing an  essoin,"  "  demanding  a  view,"  &c."  But  it  may 
be  considered  as  creating  order  out  of  chaos  in  the  legal 
world,  and,  with  all  its  faults,  it  must  have  been  of 

1 4  Inst.  140 ;  3  Rep.  Preface,  vii.  He  means,  of  permanent  authority  in 
the  common  law  ;  which  earlier  treatises  could  not  be  considered. 

*  I  give  a  specimen : 

"  SECUNDUS  DIES.  Secundo  die  piaciti  potest  reus  facere  defaltam  si 
velit  ex  consuetudine  regni,  dum  tamen  essoniatus  fuerit  primo  die  ordine 
preemonstato.  Petens  autem  expectans  quartam  diem  ipso  die  offerat  se  liti 
sic  versus  ipsum  reum  in  haec  verba :  '  Richarclus  le  Jay  se  profre  vers  Wil- 
liam Huse  de  play  de  terre.'  "  &c. — Hengham  Magna,  ch.  vfii. 


I289-J  RALPH  DE  HENGHAM.  75 

essential  service  to  those  who  were  to  practice  before 
the  learned  author. 

He  gave  much  satisfaction  by  his  despatch  of  judicial 
business.  The  Judges  of  the  King's  Bench  still  traveled 
about  with  the  Sovereign,  and  mounted  their  tribunal 
wherever  he  might  be.  Thus  Chief  Justice  Hengham 
led  a  wandering  "life,  and  was  stationed  from  time  to 
time  at  Winchester,  Gloucester,  York,  and  other  cities. 
He  was  summoned  to  the  parliament  held  at  Shrews- 
bury, and  joined  in  the  inhuman  sentence  by  which  the 
Prince  of  Wales  was  condemned  to  die  as  a  traitor  for 
gallantly  defending  the  independence  of  his  country.1 

The  conquest  and  settlement  of  Wales  being  com- 
pleted, Edward  went  abroad  in  order  to  make  peace  be- 
tween Alphonso,  King  of  Aragon,  and  Philip  the  Fair, 
who  had  lately  succeeded  Philip  the  Hardy  on  the 
throne  of  France.  In  such  favor  was  Chief  Justice  de 
Hengham,  that  he  was  appointed  Guardian  of  the  king- 
dom, although  this  trust  no  longer  was  attached  to  his 
office ; — the  King  declaring,  like  the  Duke  of  Vienna, — 

..."  You  must  know  we  have  with  special  aoul 

Elected  him  our  absence  to  supply  ; 

Lent  him  our  terror,  drest  him  with  our  love, 

And  given  his  deputation  all  the  organs 

Of  our  own  power." 

The  courtiers  probably  replied, — 

"  If  any  in  all  England  be  of  worth 
To  undergo  such  ample  grace  and  honor, 
It  is  De  Hengham." 

Yet  he  was  supposed  to  have  misconducted  himself  as 
much  as  "  Lord  Chief  Justice  Angelo." 

The  King  remained  in  Aquitaine  nearly  three  years, 
and  at  last  coming  home  rather  unexpectedly,  though 
not  in  disguise,  found  many  disorders  to  have  prevailed, 
both  from  open  violence  and  the  corruption  of  justice. 
Tumults  had  broken  out  in  many  parts  of  England  (it 
was  said)  from  the  rapacity  of  De  Hengham ;  and  rob- 
beries on  the  highways  had  become  so  frequent,  that  no 
one  could  travel  from  town  to  town  without  a  strong 
escort.  What  was  worse,  it  was  alleged  that  the  Lord 

1  Rot.  Tarl.  6  Ed.  x. 


76 


REIGN  OF  EDWARD  I. 


[1289- 


Chief  Justice,  instead  of  vigorously  and  impartially  en- 
forcing the  law,  had  himself  taken  bribes,  and  had  con- 
nived at  a  wholesale  trade  in  bribery  carried  on  by  his 
brother  Judges. 

The  King,  without  inquiry,  threw  them  all  into  prison, 
and  summoned  a  parliament,  before  which  they  might 
be  brought  to  trial.  The  kingdom  was  certainly  found 
in  a  very  disturbed  state,  but  no  specific  act  of  mis- 
government  could  be  fastened  on  De  Hengham.  He 
and  most  of  the  other  Judges,  however,  had  taken 
money  from  the  suitors,  which  was  considered  evidence 
of  judicial  corruption.  They  were  put  to  answer  at  the 
bar  of  the  House  of  Lords,  and  many  witnesses  were 
examined  against  them.  All  except  two,  John  de  Mat- 
ingham  and  Elias  de  Beckingham,  were  found  guilty, 
dismissed  from  their  offices,  and  heavily  fined.  To  dis- 
grace them  still  more,  their  successors  were  required  to 
swear,  when  entering  on  office,  "  that  they  would  take 
no  bribe,  nor  money,  nor  gift  of  any  kind,  from  such 
persons  as  had  suits  depending  before  them, — except 
a  breakfast."1 

De  Hengham  was  fined  7000  marks,  and  for  some  time 
labored  under  deep  disgrace."  But  the  evidence  against 
him  is  not  preserved,  and  there  is  reason  to  think  that 
he  suffered  unjustly  from  popular  prejudice  and  royal 
precipitancy.  The  salary  allowed  to  him  was  so  exceed- 
ingly small,  that  he  could  not  subsist  without  fees,  and, 
the  amount  of  these  not  always  being  well  defined,  the 

1  Parl.  Hist.  38. 

*  Tyrrell,  in  his  History,  sets  down  the  fines  as  follows: 
"  Sir  Ralph  de  Hengham  C.  J 
Sir  John  Loveton 
Sir  William  Brompton 
Sir  Solomon  Rochester 
Sir  Richard  Boyland 
Sir  Thomas  Soddington 
Sir  Walter  Hopton 
Sir  William  Saham 

Robert  Lithbury 

Roger  Leicester 

Henry  Bray 

And,  what  is  more  remarkable,  Adam  de  Stratton,  a  certain  Clerk  of  the 
court,  is  fined  no  less  than  32,000  marks  of  new  money,  besides  jewels  and 
silver  plate." 


7000  marks 

3000 

3000 
4000 

Justice  of  Assize. 

4000 
2000 

2OOO 

i 

Justices 
Itinerant. 

3000 

1000 

Master  of  the  Rolls. 

IOOO 

.    IOOO       "       }• 

Escheator  and 
Judge  for  the  Jew; 

i3o8.J  RALPH  DE  HENGHAM.  77 

taking  of  them  was  liable  to  be  misconstrued  into  extor- 
tion or  bribery.  In  after-times  the  current  of  public 
opinion  ran  strongly  in  his  favor ;  and  in  Richard  III.'s 
reign  it  was  said  "  the  only  crime  proved  against  him 
wa.c,  that,  out  of  mere  compassion,  he  had  reduced  a 
fine,  which  he  had  set  upon  a  poor  man  from  13^.  4^.  to 
6s.  &/.1  The  tradition  prevailing  in  the  reign  of  Eliza- 
beth was,  that  from  the  fine  upon  the  Chief  Justice  him- 
self a  clock-house  was  built  at  Westminster,  furnished 
with  a  clock  to  be  heard  in  Westminster  Hall."  Upon  this 
story,  however,  Blackstone  remarks,  "  that  (whatever  in- 
stances may  be  found  of  the  private  exertion  of  mechan- 
ical genius  in  constructing  horological  machines)  clocks 
came  not  into  common  use  till  an  hundred  years  after- 
wards, about  the  end  of  the  I4th  century."3 

The  ex-Chief  Justice  bore  his  misfortunes  with  mag- 
nanimity, and  gradually  recovered  the  confidence  both 
of  the  King  and  of  the  public.  About  eleven  years 
afterwards  we  find  him  one  of  the  Justices  in  Eyre  for 
the  general  perambulation  of  the  forests  •*  and  near  the 
conclusion  of  this  reign  he  was  employed  to  negotiate  a 
treaty  with  the  Scots,  the  King  Having  failed  in  all  his 
attempts  to  rob  them  of  their  independence.6 

At  the  accession  of  Edward  II.,  De  Hengham  was 
again  actually  replaced  on  the  Bench,  being  appointed 
Chief  Justice  of  the  Court  of  Common  Pleas;6  and  he 
continued  to  fill  this  office  with  much  credit  till  his 
death  in  the  end  of  the  following  year.  He  was  buried 

1  Year-Book,  M.  2  Richard  III.  10. 

*  3  Inst.  72  ;  4  Inst.  255. 

8  Comm.  vol.  iii.  410.  Lord  Coke  was  more  credulous,  and  thus  palavers 
in  his  4th  Institute  (f.  255) : — "  Radulphus  de  Ingham,  Chief  Justice  of 
England,  a  very  poor  man  being  fined  before  him  at  13^.  4</.,  in  another 
tearm,  moved  with  pity,  caused  the  record  to  be  rased  and  made  6.r.  SJ. ;  for 
which  he  (for  his  fine)  made  the  clock  (to  be  heard  into  Westminster  Hall) 
and  the  clock-house  in  Westminster,  which  cost  him  800  marks,  and  con- 
tinueth  unto  this  day,  which  sum  was  entered  into  the  roll.  And  almost  in 
the  like  case  in  the  reign  of  Queen  Elizabeth,  Sir  Robert  Catlyn,  Chief 
Justice  of  England,  would  have  had  Justice  Southcote  (one  of  his  compan- 
ions, justice  of  the  King's  Bench)  to  have  altered  a  record,  which  the 
justice  denyed  to  doe,  and  said  openly  in  court  '  that  he  meant  not  to  build  a 
clock-house.' "  See  3  Pryn.  Rec.  401,  402  ;  Dugd.  Chron.  Ser.  26  ;  I  Hale, 
P.  C.  646,  647. 

4  Rot.  in  Furr.  Lond.,  29  Ed.  I.  m.  8.  *  I  Rot.  Par!.,  33  Ed.  I. 

6  Dugd.  Chron.  Ser.  34, 


78  REIGN  OF  EDWARD  I.  [1289. 

in  St.  Paul's  Cathedral,  where  a  marble  monument  was 
erected  to  his  memory  with  the  following  rhyming  epi- 
taph : — 

"  Per  versus  patet  hos,  Angloru  qd  jacet  hie  flos  ; 
Legum  qui  tuta  dictavit  vera  statuta, 
Ex  Hengha  diet'  Radulph,  vir  benedict'.  " 

He  may  be  truly  considered  the  father  of  the  Common 
Law  Judges.  He  was  the  first  of  them  that  never  put 
on  a  coat  of  mail ;  and  he  has  had  a  long  line  of  illus- 
trious successors  contented  with  the  ermined  robe. 

Of  the  contemporary  Judge,  DE  WEYLAND,  I  find 
nothing  related  prior  to  his  appointment  of  Chief  Justice 
of  the  Common  Pleas.  He  likewise  was  esteemed  a 
great  lawyer,  and  he  long  gave  high  satisfaction  as  a 
magistrate.  He  several  times  acted  as  Justice  Itinerant, 
and  was  zealous  in  detecting  and  punishing  criminals.1 
But  unfortunately,  his  salary  being  only  sixty  marks  a 
year,  he  seems  without  scruple  to  have  resorted  to  very 
irregular  courses  for  the  purpose  of  increasing  his  riches. 

When  arrested,  on  the  King's  return  from  Aquitaine, 
conscious  of  his  guilt,  he  contrived  to  escape  from  cus- 
tody, and,  disguising  himself  in  the  habit  of  a  monk,  he 
was  admitted  among  friars-minors  in  a  convent  at  Bury 
St.  Edmund's.  However,  being  considered  a  heinous 
offender,  sharp  pursuit  was  made  after  him,  and  he  was 
discovered  wearing  a  cowl  and  a  serge  jerkin.  Accord- 
ing to  the  law  of  sanctuary,  then  prevailing,  he  was 
allowed  to  remain  forty  days  unmolested.  At  the  end 
of  that  time  the  convent  was  surrounded  by  a  military 
force,  and  the  entry  of  provisions  into  it  was  prohibited. 
Still  it  would  have  been  deemed  sacrilegious  to  take  him 
from  his  asylum  by  violence;  but  the  Lord  Chief  Jus- 
tice preferred  surrendering  himself  to  perishing  from 
want.1  He  was  immediately  conducted  to  the  Tower  of 
London.  Rather  than  stand  a  trial,  he  petitioned  for 
leave  to  abjure  the  realm  ;  this  favor  was  granted  to  him 
on  condition  that  he  should  be  attainted,  and  forfeit  all 

1  Madd.  Exch.  ii.  66.  c.  I.  k. 

9  One  account  says,  "  He  took  upon  him  the  habit  of  a  grey  friar,  but, 
being  discovered  by  some  of  his  servants,  he  was  watched  and  guarded,  and, 
after  two  months'  siege,  went  out  forsaking  his  friar's  coole,  and  was  taken 
and  sent  to  the  tower." — See  4  Bloomfield's  Norfolk,  631. 


1289.]  ROGER  LE  BRABACON.  79 

his  lands  and  chattels  to  the  Crown.1  Having  walked 
barefoot  and  bareheaded,  with  a  crucifix  in  his  hand,  to 
the  seaside  at  Dover,  he  was  put  on  board  a  ship  and 
departed  to  foreign  parts.  He  is  said  to  have  died  in 
exile,  and  he  left  a  name  often  quoted  as  a  reproach  to 
the  Bench  till  he  was  superseded  by  Jeffreys  and 
Scroggs.* 

The  immediate  successor  of  De  Hengham  as  Chief 
Justice  of  the  King's  Bench  was  GILBERT  DE  THORN- 
TON, who,  I  make  no  doubt,. was  a  worthy  man,  but  who 
could  not  have  been  very  distinguished,  for  all  that  I 
can  find  respecting  him  is  that  he  was  allowed  a  salary 
of  £40  a  year.3  He  was  overshadowed,  as  sometimes 
happens,  by  a  puisne  who  sat  by  him,  and  who  at  last 
supplanted  him.  This  was  ROGER  LE  BRABACON,4  who, 
from  the  part  he  took  in  settling  the  disputed  claim  to 
the  crown  of  Scotland,  is  an  historical  character.  His  an- 

1  The  property  forfeited  by  him.  was  said  to  have  been  worth  upwards  of 
100,000  marks,  or  ,£70,000,  "  an  incredible  sum,"  says  Blackstone,  "  in  those 
days  before  paper  credit  was  in  use,  and  when  the  annual  salary  of  a  Chief 
Justice  was  only  sixty  marks." — Com.  iii.  410. 

*  Oliver  St.  John,  in  his  speech  in  the  Long  Parliament  against  the 
Judges  who  decided  in  favor  of  ship-money,  compares  them  with  the  worst 
of  their  predecessors : — "  Weyland,  Chief  Justice  of  the  Common  Pleas  in 
the  time  of  Edward  I.,  was  attainted  of  felony  for  taking  bribes,  and  his 
lands  and  goods  forfeited,  as  appears  in  the  Pleas  of  Parliament,  18  Ed.  I., 
and  he  was  banished  the  kingdom  as  unworthy  to  live  in  that  state  against 
which  he  had  so  much  offended." 

Lingard  says  that  "  Weyland  was  found  guilty  of  having  first  instigated 
his  servants  to  commit  murder,  and  then  screened  them,  from  punishment  " 
(vol.  iii.  270) ;  but  he  cites  no  authority  to  support  so  serious  a  charge  :  and 
the  historian  on  this  occasion  does  not  display  his  usual  accuracy,  as  he 
makes  Weyland  Chief  Justice  of  the  King's  Bench,  elevating  De  Hengham 
at  the  same  time  to  the  office  of  "  Grand  Justiciary." 

In  a  MS.  chronicle  in  the  Bodleian  Library,  cited  by  Dugdale  (Chron. 
Ser.  1288),  there  is  this  entry :  "  Tho.  de  Weyland,  eo  quod  malk  tractavit 
populum,  ab  officio  Justiciarii  amotus,  exhaeredattis,  et  a  terra  exultatus." 

Speed  gives  a  melancholy  account  of  the  sufferings  of  the  English,  at  this 
time,  between  the  Jews  and  the  Judges.  "  While  the  Jews  by  their  cruel 
usuries  had  one  way  eaten  up  the  people,  the  Justiciars,  like  another  kind 
of  Jews,  had  ruined  them  with  delay  in  their  suits,  and  enriched  themselves 
with  wicked  convictions."  He  then  relates  with  great  glee  "how  Sir 
Thomas  Weyland  being  stripped  of  all  his  lands,  goods,  and  jewels,  which 
he  had  so  wickedly  got,  was  banished  like  the  felons  he  had  tried." — Hist, 
»fG.  4  p.  558. 

5 "  Gilbertus  de  Thornton,  capitalis  Justic.  habet  XL/,  per  annum,  ad  se 
sustentandum." — Lib.  18  Ed.  I.  m.  I. 

4  The  name  is  sometimes  spelt  Braba9on,  Brabaneon,  Brabason,  and 
Brabanson. 


80  REIGN  OF  EDWARD  I.  [1291. 

cestor,  celebrated  as  "the  great  warrior,"  had  accom- 
panied the  Conqueror  in  the  invasion  of  England,  and 
was  chief  of  one  of  those  bands  of  mercenary  soldiers 
then  well  known  in  Europe  under  the  names  (for  what 
reason,  historians  are  not  agreed)  of  Routiers,  Cotter- 
eaux,  or  Brabancons.1  Being  rewarded  with  large  pos- 
sessions in  the  counties  of  Surrey  and  Leicester,  he 
founded  a  family  which  flourished  several  centuries  in 
England,  and  is  now  represented  in  the  male  line  by  an 
Irish  peer,  the  tenth  Earl  of  Meath.  The  subject  of  the 
present  sketch,  fifth  in  descent  from  "  the  great  war- 
rior," changed  the  military  ardor  of  his  race  for  a  desire 
to  gain  distinction  as  a  lawyer.  He  was  regularly  trained 
in  all  the  learning  of  "  Essoins"  and  "Assizes,"  and  he 
had  extensive  practice  as  an  advocate  under  Lord  Chief 
Justice  de  Hengham.  On  the  sweeping  removal  of  al- 
most all  the  Judges  in  the  year  1190,  he  was  knighted, 
and  appointed  a  Puisne  Justice  of  the  King's  Bench, 
with  a  salary — which  one  would  have  thought  must  have 
been  a  very  small  addition  to  the  profits  of  his  hered- 
itary estates — of  £55  6s..  8d.  a  year.*  He  proved  a  most 
admirable  Judge ;  and,  in  addition  to  his  professional 
knowledge,  being  well  versed  in  historical  lore,  he  was 
frequently  referred  to  by  the  Government  when  negotia- 
tions were  going  on  with  foreign  states. 

Edward  I.,  arbitrator  by  mutual  consent  between  the 
aspirants  to  the  crown  of  Scotland,  resolved  to  set  up  a 
claim  for  himself  as  liege  lord  of  that  kingdom,  and 
Brabacon  was  employed,  by  searching  ancient  records, 
to  find  out  any  plausible  grounds  on  which  the  claim 
could  be  supported.  He  accordingly  traveled  diligently 
both  through  the  Saxon  and  Norman  period,  and — by 
making  the  most  of  military  advantages  obtained  by 
Kings  of  England  over  Kings  of  Scotland,  by  misrepre- 
senting the  nature  of  homage  which  the  latter  had  paid 

1  Hume,  who  designates  them  "  desperate  ruffians,"  says,  "  troops  of  them 
were  sometimes  enlisted  in  the  service  of  one  prince  or  baron,  sometimes  in 
that  of  another ;  they  often  acted  in  an  independent  manner,  and  under 
leaders  of  their  own.  The  greatest  monarchs  were  not  ashamed,  on  occa- 
sion, to  have  recourse  to  their  assistance ;  and  as  their  habits  of  war  and 
depredation  had  given  them  experience,  hardiness,  and  courage,  they  gen- 
erally composed  the  most  formidable  part  of  those  armies  which  decided 
the  political  quarrels  of  princes." — Vol.  i.  438. 

•  Dug.  Chr.  Ser.  A.  D.  1290. 


i29i.]  ROGER  LE  BRABACON.  81 

to  the  former  for  possessions  held  by  them  in  England, 
and  by  blazoning  the  acknowledgment  of  feudal  subjec- 
tion extorted  by  Henry  II.  from  William  the  Lion  when 
that  prince  was  in  captivity,  without  mentioning  the 
express  renunciation  of  it  by  Richard  I. — he  made  out  a 
cast  which  gave  high  delight  to  the  English  Court. 
Edward  immediately  summoned  a  parliament  to  meet 
at  Norham,  on  the  south  bank  of  the  Tweed,  marched 
thither  at  the  head  of  a  considerable  military  force,  and 
carried  Mr.  Justice  Brabagon  along  with  him  as  the  ex- 
ponent and  defender  of  his  new  suzerainett.  The  Scot- 
tish nobles  being*  induced  to  cross  the  river  and  to 
assemble  in  the  presence  of  Edward,  under  pretense 
that  he  was  to  act  only  as  arbitrator,  Sir  Roger  by  his 
order  addressed  them  in  French  (the  language  then 
spoken  by  the  upper  classes  both  in  Scotland  and  Eng- 
land), disclosing  the  alarming  pretensions  about  to  be 
set  up.  The  following  is  said  to  be  the  substance  of 
this  speech : — 

"Lords,  Thanes,  and  Knights  of  Scotland, — The 
reason  of  our  supreme  Lord  coming  here,  and  of  your 
being  summoned  together,  is,  that  he,  in  his  fatherly 
kindness  for  all  in  any  way  depending  upon  him,  taking 
notice  of  the  confusion  in  which  your  nation  has  been 
since  the  death  of  Alexander  your  last  King,  and  from 
the  affection  he  bears  for  that  kingdom,  and  all  the  in- 
habitants thereof,  whose  protection  is  well  known  to 
belong  to  him,  has  resolved,  for  the  more  effectually 
doing  right  to  all  who  claim  the  kingdom,  and  for  the 
preservation  of  the  peace  thereof,  to  show  you  his  siipe- 
riority  and  direct  dominion*  over  the  same  out  of  divers 
chronicles  and  ancient  muniments  preserved  in  several 
monasteries  in  England." 

He  then  appears  to  have  entered  into  his  proofs ;  and 
he  thus  concluded  : — 

"  The  mighty  Edward,  to  whom  you  have  appealed, 
will  do  justice  to  all  without  any  usurpation  or  diminu- 
tion of  your  liberties ;  but  he  demands  your  assent  to, 

1  Here  is  the  well-known  feudal  distinction  between  the  dominium  direc- 
tum,  which  belongs  to  the  lord,  and  the  dominium  utile,  which  belongs  to  the 
feudatory. 
1—6. 


82  REIGN  OF  EDWARD  I.  [1293. 

and  recognition  of,  his  said  superiority  and  direct  do- 
minion" 

A  public  notary  and  witnesses  were  in  attendance,  and 
in   their   presence   the   assumed  vassals  were  formally 
called  upon  to  do  homage  to  Edward  as  their  suzerain, 
of  which  a  record  was  to  be  made  for  a  lasting  memorial. 
The  Scots  saw  too  late  the  imprudence  of  which  they 
had  been  guilty  in  choosing  such  a  crafty  and  powerful 
arbitrator.     For  the  present  they  refused  the  required 
recognition,  saying  that  "  they  must  have  time  for  de- 
liberation, and  to  consult  the  absent  members  of  their 
different   orders."     Braba§on,  after   advising  with   the 
King,  consented  that  they  should  have  time  until  the 
following  day,  and  no  longer.     They  insisted  on  further 
delay,  and  showed  such  a  determined  spirit  of  resistance, 
that  their  request  was  granted  ;  and  the  first  day  of  June 
following  was  fixed  for  the  ceremony  of  the  recognition. 
Brabagon  allowed  them  to  depart ;    and  a  copy  of  his 
paper,  containing  the  proofs  of  the  alleged  superiority 
and  direct  dominion  of  the  English  kings  over  Scotland, 
was  put   into  their  hands.     He  then  returned  to  the 
south,  where  his  presence  was  required  to  assist  in  the 
administration  of  justice,  leaving  the  Chancellor  Burnel 
to  complete  the  transaction.     Although  the  body  of  the 
Scottish   nobles,  as   well   as   the   body  of  the   Scottish 
people,  would  resolutely  have  withstood  the  demand, 
the  competitors  for  the  throne,  in  the  hopes  of  gaining 
Edward's  favor,  successively  acknowledged  him  as  their 
liege  lord,  and  their  example  was  followed  by  almost 
the  whole  of  those  who  then  constituted  the  Scottish 
Parliament.     But  this  national  disgrace  was  effaced  by 
the  glorious  exploits  of  Wallace  and  Bruce     and  Braba- 
£on  lived  to  see  the  fugitives  from  Bannockburn,  and  to 
hear  from  them  of  the  saddest  overthrow  ever  sustained 
by  England   since    Harold   and   his   brave   army  were 
mowed  down  at  Hastings. 

When  judgment  had  been  given  in  favor  of  Baliol, 
Brabajon  was  still  employed  to  assist  in  the  plan  which 
had  been  formed  to  bring  Scotland  into  entire  subjec- 
tion. There  being  a  meeting  at  Newcastle  of  the  nobles 
of  the  two  nations,  when  the  feudatory  King  did  hom- 
age to  his  liege  lord,  complaint  was  made  by  Roger 


1296.]  ROGER  LE  BRA  BACON.  83 

Bartholomew,  a  burgess  of  Berwick,  that  certain  Eng- 
lish judges  had  been  deputed  to  exercise  jurisdiction  on 
the  north  bank  of  the  Tweed.  Edward  referred  the 
matter  to  Brabacon,  and  other  commissioners,  com- 
manding them  to  do  justice  according  to  the  laws  and 
customs  of  his  kingdom.  A  petition  was  then  presented 
to  them  on  behalf  of  the  King  of  Scotland,  setting  forth 
Edward's  promise  to  observe  the  laws  and  customs  of 
that  kingdom,  and  that  pleas  of  things  done  there  should 
not  be  drawn  to  examination  elsewhere.  Braba§on  is 
reported  thus  to  have  answered : — 

"  This  petition  is  unnecessary,  and  not  to  the  purpose  ; 
for  it  is  manifest,  and  ought  to  be  admitted  by  all  the 
prelates  and  barons,  and  commonalty  of  Scotland,  that 
the  King,  our  master,  has  performed  all  his  promises  to 
them.  As  to  the  conduct  of  his  Judges,  lately  deputed 
by  him  as  SUPERIOR  and  DIRECT  LORD  of  that  kingdom, 
they  only  represent  his  person ;  he  will  take  care  that 
they  do  not  transgress  his  authority,  and  on  appeal  to 
him  he  will  see  that  right  is  done.  If  the  King  had 
made  any  temporary  promises  when  the  Scottish  throne 
was  vacant,  in  derogation  of  his  just  suzerainett,  by 
such  promises  he  would  not  have  been  restrained  or 
bound." 

Encouraged  by  this  language,  Macduff,  the  Earl  of 
Fife,  entered  an  appeal  in  the  English  House  of  Lords 
against  the  King  of  Scotland ;  and,  on  the  advice  of 
Brabagon  and  the  other  Judges,  it  was  resolved  that  the 
respondent  must  stand  at  the  bar  as  a  vassal,  and  that, 
for  his  contumacy,  three  of  his  principal  castles  should 
be  seized  into  the  King's  hands.1 

Although  historians  who  mention  these  events  desig- 
nate Brabagon  as  "  Grand  Justiciary,"  it  is  quite  certain 
that,  as  yet,  he  was  merely  a  Puisne  Judge ;  but  there 
was  a  strong  desire  to  reward  him  for  his  services,  and, 
at  last,  an  opportune  vacancy  arising,  he  was  created 
Chief  Justice  of  the  King's  Bench. 

Of  his  performances  in  this  capacity  we  know  nothing, 
except  by  the  general  commendation  of  chroniclers  ;  for 
the  Year-Books,  giving  a  regular  account  of  judicial  de- 
cisions, do  not  begin  till  the  following  reign.  The  Court 

1  Rym.  ii.  605.  615.  635.     Rot.  Scot.  i.  II.  16. 


84  REIGN  OF  ED  WARD  I.  [I3o7. 

of  King's  Bench,  still  following  the  person  of  the  sov- 
ereign, was,  on  one  occasion,  in  Brabagon's  time,  held  in 
Roxburgh  Castle,  then  in  the  possession  of  the  English  ; 
but  we  have  no  report  of  any  of  the  proceedings  which 
came  before  it.1 

He  was  still  employed  in  a  political  capacity  ;  and  in 
the  parliament  held  at  Lincoln  in  the  year  1301,  he  thus 
declared  the  reasons  for  calling  it,  and  pressed  for  a 
supply : — 

"  My  lords,  knights,  citizens  and  burgesses  :  The  king 
has  ordered  me  to  let  you  understand  that  whatever  he 
hath  done  in  his  late  wars  hath  been  carried  on  by  your 
joint  consent  and  allowance.  But  of  late  time,  by 
reason  of  the  sudden  incursion  of  the  Scots,  and  the 
malicious  contrivance  of  the  French,  his  Highness  has 
been  put  to  such  extraordinary  expenses,  that,  being 
quite  destitute  of  money,  he  therefore  desires  a  pecuniary 
aid  from  you  ;  and  trusts  that  you  will  not  offer  him  less 
than  one-fifteenth  of  your  temporal  estates." 

"  Hereupon,"  says  the  reporter,  "  the  nobility  and 
commons  began  to  murmur,8  and  complained  grievously 
against  the  king's  menial  servants  and  officers  for  several 
violent  depredations  and  extortions.  However,  the  wily 
Chief  Justice  soothed  them  by  making  the  king  go 
through  the  ceremony  of  confirming  the  Great  Charter 
and  the  Charter  of  Forests,  and  he  obtained  the  supply 
he  asked  for.8 — We  read  nothing  more  that  is  very  mem- 
orable of  him  during  the  present  reign/ 

On  the  accession  of  Edward  II.  Brabacon  was  reap- 
pointed  Chief  Justice  of  the  King's  Bench,6  and  he 
continued  very  creditably  to  fill  the  office  for  eight  years 
longer.  He  was  fated  to  deplore  the  fruitless  result  of 
all  his  efforts  to  reduce  Scotland  to  the  English  yoke, — 
Robert  Bruce  being  now  the  independent  sovereign  of 
that  kingdom,  after  humbling  the  pride  of  England's 
chivalry. 

1  Hale,  Hist.  C.  L.  200. 

*  We  are  not  told  whether  they  exclaimed  "  Oh  !  oh  !"  or  what  was  the 
prevailing  fashion  «f  interjectional  dissent.  For  centuries  after,  parliamen- 
tary cheering  was  not  by  "  Hear !  hear !"  but  by  "  Amen  !  amen  !" 

3  i  Parl.  Hist.  46.  4  See  3  Tyrrell,  18. 

6  He  was  sworn  in  before  Walter  Reginald,  the  Deputy  Treasurer. — Dug. 
Chr.  Ser. 


I293-J  WILLIAM    HOWARD.  85 

At  last,  the  infirmities  of  age  unfitting  Braba§on  for 
the  discharge  of  his  judicial  duties,  he  resigned  his 
gown  ;  but,  to  do  him  honor,  he  was  sworn  a  member  of 
the  Privy  Council,  and  he  continued  to  be  treated  with 
the  highest  respect  by  all  ranks  till  his  death,  which 
happened  about  two  years  afterwards. — He  was  mar- 
ried to  Beatrice,  daughter  of  John  de  Sproxton,  but 
had  by  her  only  one  child,  a  son,  who  died  an  infant. 
The  earls  of  Meath  are  descended  from  his  brother 
Matthew.1 

Collins,  in  his  "  Peerage,"  which,  generally  speaking, 
is  a  book  of  authority,  here  introduces  Sir  William 
Howard,  as  "  Chief  Justice  of  England."  Although  he 
is  so  described  under  his  portrait  in  the  window  of  the 
church  at  Long  Melford,  in  Suffolk,8  I  doubt  whether  he 
ever  reached  this  dignity  ;  but,  for  the  honor  of  the  law, 
I  cannot  refuse  to  introduce  him  from  whom  flowed  all 
the  blood  of  all  the  Howards. 

The  name  was  originally  spelt  Haward,  and  must  have 
been  of  Saxon  origin.  His  pedigree  does  not  extend 
higher  than  his  grandfather,  who  was  a  private  gentle- 
man, of  small  estate,  near  Lynn,  in  Norfolk.  His  father 
likewise  was  contented  to  lead  a  quiet  life  in  the  coun- 
try,— intermarrying  with  the  daughter  of  a  respectable 
neighbor,  and  neither  increasing  nor  diminishing  his 
patrimonial  property.  But  young  William,  hearing  of 
the  great  fame  and  riches  acquired  by  De  Hengham  and 
other  lawyers,  early  felt  an  ambition  to  be  inscribed  in 
their  order,  and  was  sent  to  study  the  law  in  London. 
There  is  no  certain  account  of  his  success  at  the  bar,  but 
we  know  that  in  the  2ist  Edward  I.  he  was  assigned, 
with  seven  others,  to  take  the  assizes  throughout  the 
realm  in  aid  of  the  Justices  of  both  benches.  The  dis- 
trict to  which  he  was  appointed  comprehended  the 
counties  which  now  constitute  the  Northern  circuit  (ex- 
cept Durham),  with  Nottingham  and  Derby,  now  belong- 

1  His  descendant,  Sir  William  le  Brabagon,  was  Vice-Treasurer  of  Ire- 
land, and  died  in  1552.  An  Irish  earldom  was  conferred  on  the  family  in 
1627,  and  in  1831  the  present  Earl  was  created  a  peer,  of  the  United  King- 
dom by  the  title  of  Baron  Chaworth. — See  Grandeur  of  the  Law,  p.  182. 

3  He  appears  there  in  his  judge's  robes,  with  these  words  in  ancient  black- 
letter  characters :  "  Pray  for  the  good  state  of  William  Haward,  Chief 
Justis  of  England." — Dug.  Or.  Jur.  p.  100. 


86  REIGN  OF  HENRY  III.  [1297. 

ing  to  the  Midland.  Four  years  after,  he  was  appointed 
one  of  the  Judges  of  the  Common  Pleas:  and  on  the 
accession  of  Edward  II.  he  was  again  sworn  into  the 
same  office.1  Our  judicial  records  do  not  mention  any 
higher  distinction  acquired  by  him  ;  and  I  suspect  that 
the  chiefship  was  only  conferred  upon  him  by  flatterers 
of  his  descendants  when  they  were  rising  to  greatness. 
Nevertheless,  he  was  certainly  a  very  able  and  upright 
magistrate  ;  and,  from  his  profits  as  a  barrister,  and  his 
official  fees,  (his  salary  was  little  more  than  £30  a  year,) 
he  bought  large  possessions  at  Terrington,  Wiggenhall, 
East  Winch,  and  Melford,  in  Suffolk.  These  were  long 
the  principal  inheritance  of  the  Howards,  who,  for  sev- 
eral generations,  did  not  rise  higher  than  being  gentle- 
men of  the  bedchamber,  sheriffs  of  Norfolk  and  Suffolk, 
governors  of  Norwich  Castle,  and  commissioners  of  array, 
— withojut  being  ennobled.  At  last,  Sir  Robert  Howard, 
descended  from  the  Judge's  eldest  son,  married 
the  heiress  of  Thomas  Mowbray,  Duke  of  Norfolk ; 
and  Richard  III.  conferred  on  John,  the  son  of  this 
marriage,  (the  famous  "  Jockey  of  Norfolk,"  who  fought 
and  fell  at  Bosworth,)  the  dukedom  still  enjoyed,  after 
repeated  attainders,  by  the  eldest  representative  of  the 
family;  while  many  earldoms  and  baronies  ha\e  been 
conferred  on  its  junior  branches. 

The  next  authentic  Chief  Justice  of  the  King's  Bench 
was  Henry  le  Scrope,  the  first  who,  by  success  in  the  law, 
founded  a  family,  and  was  himself  ennobled.  Many  of 
ancient  lineage,  like  the  Grand  Justiciars,  had  held  judi- 
cial offices  ;  and  several,  like  Sir  William  Howard,  raised 
themselves  to  eminence,  and  left  descendants  afterwards 
enrolled  in  the  peerage.  Henry  le  Scrope,  of  an  obscure 
origin,  from  eminence  in  the  legal  profession,  sat  in  the 
House  of  Lords  as  a  Baron  ;  and  great  chancellors  and 
warriors  were  proud  to  trace  him  in  their  pedigree.  He 
was  the  son  of  William  le  Scrope,  a  small  'squire,  who 
lived  at  Bolton,  in  Yorkshire.  Having  studied  at  Oxford, 
he  was  transplanted,  when  very  young,  to  London,  to 
study  law  in  one  of  the  societies  then  forming,  which 
were  afterwards  denominated  "  Inns  of  Court."  He  was 
much  distinguished  for  industry  and  ability,  and,  in  the 

1  Dugd.  Chron.  Ser. 


1 3 1 3 .  J  HENR  Y  DE  S  TA  UN  TON.  8  7 

end  of  the  reign  of  Edward  L,  gained  great  wealth  and 
reputation  as  an  advocate.  In  the  second  year  of  Ed- 
ward II.,  he  was  made  a  Puisne  Judge  of  the  Common 
Pleas  ;  and  at  the  end  of  six  years,  while  he  still  continued 
in  the  same  office,  he  was  summoned  to  parliament,  not 
merely  to  advise,  like  the  other  judges,  but  to  assent  to, 
the  measures  to  be  brought  forward.  It  is  a  curious  cir- 
cumstance, that,  although  he  took  his  seat  as  a  member 
of  the  House,  he  did  not  receive  a  similar  summons  to 
any  subsequent  parliament.1 

Two  years  afterwards,  he  was  made  Chief  Justice  of  the 
King's  Bench  ;  and  he  held  the  office,  with  high  reputa- 
tion, for  ten  years,  when  he  was  removed  from  it  in  the 
convulsions  which  marked  the  conclusion  of  this  reign. 
But  he  was  restored  to  the  bench  when  Edward  III.  had 
established  his  authority,  as  sovereign,  by  putting  down 
his  mother  and  her  paramour  ;  and  he  died  in  1336,  full 
of  days  and  of  honors. 

From  him  were  descended  the  Lords  Scrope  of  Bol- 
ton  ;  and  his  younger  son,  after  being  a  great  warrior,  be- 
coming Lord  Chancellor,  established  another  branch  of 
this  illustrious  house.8 

On  his  first  removal  he  was  succeeded  by  Henry  de 
Staunton,  who  filled  a  greater  variety  of  judicial  offices 
than  any  lawyer  I  read  of  in  the  annals  of  Westminster 
Hall.  This  extraordinary  man  was  a  younger  brother  of 
a  respectable  family  that  had  long  been  seated  in  the 
county  of  Nottingham.  He  seems,  when  quite  a  boy,  to 
have  conceived  a  passion  for  the  law  ;  and  to  gratify  him, 
he  was  sent  to  an  inn  of  court,  without  having  been  at 
any  university,  His  steadiness  in  juridical  studies  was 
equal  to  his  ardor ;  and,  while  yet  a  young  man,  having 
served  his  "  apprenticeship  "  with  great  credit,  he  reached 
the  dignity  of  serjeant,  and  was  in  great  and  profitable 
practice  in  all  the  courts.  For  nine  years  he  was  a  Puisne 
Judge  of  the  Common  Pleas — from  1306  to  1315.  He 

1  The  doctrine  that  "  summons  and  sitting  constitute  an  hereditary  peer- 
age," is  now  fully  established,  and  has  often  been  acted  upon  ;  but  in  earlier 
times  the  King  seems  to  have  exercised  the  prerogative  of  summoning  any 
knight  to  sit  in  the  House  of  Lords  for  a  single  parliament,  without  incurring 
the  obligation  of  again  summoning  him,  or  of  summoning  his  descendants 
after  his  death. 

1  See  Lives  of  Chancellors,  vol.  i.  ch.  xvi. ;  Dugd.  Bar.  and  Ch.  Ser. 


88  REIGN  OF  EDWARD  III.  [1324. 

was  then  transferred  to  the  Exchequer,  being  first  a 
Puisne  Baron,  and  then  Chancellor  of  the  Exchequer. 
On  the  first  of  June,  1323,  he  was  made  Chief  Justice  of  the 
King's  Bench,  retaining  his  former  place,  which  he  was  to 
execute  by  deputy.  In  a  few  months,  however,  he  ceased 
to  be  a  pluralist,  and  the  Chancellorship  of  the  Exchequer 
was  given  to  the  Bishop  of  Exeter.1 

De  Staunton  remained  Chief  Justice  of  the  King's 
Bench,  little  more  than  a  year,  when  he  was  made  Chief 
Justice  of  the  Common  Pleas,  which  was  the  more  prof- 
itable, and  for  several  centuries  afterwards  was  reckoned 
the  more  eligible,  appointment.3  Finally,  he  concluded 
his  career  as  Lord  Chief  Baron  of  the  Exchequer — an 
office  which  I  think  he  must  have  accepted  as  an  honor- 
able retreat  in  his  old  age,  as,  although  attended  with 
little  labor,  it  has  always  been  the  lowest  chiefship,  both 
in  emolument  and  rank.  This  is  held  till  his  death.3 

He  left  no  descendants  ;  and,  having  felt  the  want  of 
early  education,  he  bequeathed  his  fortune  to  the  found- 
ation of  a  college  in  the  University  of  Cambridge. 

1  "  Rex  omnibus  ad  quos,  &c.  Sciatis  quod  cum  dilectus  Clericus  et  fide- 
lis  noster  Henricus  de  Staunton  Cancellarii  Scaccarii  nostri  de  mandate  nos- 
tro  intendat  officio  Capitalis  Justiciarii  nostri  ad  placita  coram  nobis  tenenda 
per  quod  dicto  officio  Cancellarii  ad  praesens  intendere  non  potest  Custodiam 
Sigilli  nostri  Scaccarii  praedicti  Venerabili  Patri  W.  Exoniensi  Episcopo 
Thesaurario  nostro  commisimus,"  &c.  "  Teste  Rege  apud  Skergill  xxvij  die 
Septembris.  Per  breve  de  privato  Sigillo." — Pat.  17.  Ed.  2.  p.  I.  m.  9.,  et 
iterum,  m.  16. 

"  Dominus  Rex  mandavit  W.  Exoniensi  Episcopo  Thesaurario  per  breve 
suum  de  privato  sigillo  suo  cujus  data  est  apud  Skergill  xvij  die  Septembris 
hoc  anno  quod  quia  Hervicus  de  Staunton  Capitalis  Justiciarius  de  Banco 
Regis,  qui  habuit  custodiam  Sigilli  de  Cancellar[ia]  hujus  Scaccarii  de  cae- 
tero  ad  custodiam  officii  Cancellar[ii]  intendere  non  protest,"  &c. — Mich. 
Commun.,  17  Ed.  2  ;  Rot.  i.  6.  In  these  two  records  it  is  observable,  that 
in  one  the  chancellor  of  the  exchequer  is  called  Henry,  and  in  the  other  Her- 
•uey  de  Staunton  ;  but  from  the  context,  it  is  clear  that  the  names  Henry  and 
Hervey  are  applied  to  the  same  individual.  I  may  also  add,  that  there  is 
a  variance  in  the  date  of  the  appointment  of  the  Bishop  of  Exeter ,  the  one 
record  giving  the  2  7th  of  Sept.,  and  the  other  the  I7th,  although  it  is  evident 
that  the  one  refers  to  the  other. 

1  Memorandum  quod  die  Jovis  in  Vigilia  sancti  Jacobi  Apostoli,  anno  regis 
hujus  vicesimo  incipiente,  Hervicus  de  Staunton  pnestitit  sacramentum, 
coram  Venerabilibus  patribus  W.  Archiespiscopo  Eboracensi  Anglias  Primate 
thesaurario  W.  Exoniensi  Episcopo  Magistro  R.  de  Baldock  Cancellario 
Regis,  et  baronibus  de  Scaccario  et  Justiciarii  de  communi  banco  de  bene  et 
fideliter  se  habendo  in  officiis  capitalis  Justiciarii  de  banco  prout  moris  est." 
And  at  the  same  time  Robert  de  Ayleston  was  sworn  Chancellor  of  the  Ex» 
chequer. — Madd.  Exch.  »  Dug.  Char.  Ser.  ;  Beatson. 


1324.]  HENR  Y  DE  STA  UNTON.  89 

i 

The  following  metrical  history  of  him  is  given  by  the 
poet  Robert  Cade,1 — duly  celebrating  his  early  legal  pro- 
ficiency, but  unaccountably  omitting  his  highest  official 
preferments  : — 

"  Sir  William  Staunton,  Knight,  was  next, 

Dame  Athelin  was  his  wife, 
Sir  Geoffrey  Staunton,  Knight,  their  heire, 

Both  voide  of  vice  and  strife. 
"  And  Sir  Henrie  his  brother  was, 

Who  gave  himselfe  to  learne, 
That  when  he  came  unto  man's  state, 

He  could  the  Lawes  discerne. 
"  And  in  the  same  went  forward  still, 

And  profited  muche,  I  know, 
At  Ynnes  of  Courte  a  Counsailer 

And  Serjeant  in  the  Lawe. 
"  And  in  processe  of  tyme  indeede, 

A  Judge  he  came  to  bee 
In  the  Common  Benche  at  Westminster 

Such  was  his  highe  degree. 
"  A  Baron  wise  and  of  great  wealthe, 

Who  built  for  Scholers  gaine, 
Sainte  Michaels  house  in  Cambridge  Towne. 

Good  learninge  to  attaine  ; 
"  Which  deede  was  done  in  the  eighteenth  yeare 

Of  Second  Edwards  King, 
One  thousande  three  hundred  twenty  foure, 

For  whom  they  praye  and  singe. 
"  In  which  said  house  the  Stauntons  may 

Send  Students  to  be  placed, 
The  Founder  hath  confirmed  the  same 

It  cannot  be  defaced. 
"  This  Lord  Baron  no  yssue  had, 

We  cannot  remember  his  wife, 

Nor  where  his  body  tombed  was 

When  death  had  cut  off  life."* 


'  See  Thoroton's  History  of  Nottinghamshire. 

*  He  is  frequently  mentioned  in  contemporary  records,  and  must  have 
been  a  very  considerable  person  in  his  day,  although  now  fallen  into  such  ob- 
scurity. 

In  the  8th  Edward  II.,  Hervicus  de  Staunton  and  others  are  directed  to 
assess  and  levy  a  tallage  on  the  City  of  London  :  I  Rot.  Parl.  449.  And  in 
1320,  14  Edward  II.,  reference  is  made  to  inquests  taken  before  Johannes  de 
Insula,  Hervicus  de  Staunton,  and  Adam  de  Lymberg,  "  quse  sunt  in 
Sccio :  "  I  Rot.  Parl.  372  a. 

In  1325,  19  Edward  II.,  it  appears  that  Henry  Le  Swan  was  tried  at  the 

Eire  of  London  "  darreine  passe  devant  Sire  Henr  de  Staunton':"  Rot.  Parl. 
And  in  the  Patent  Roll,  3  Edward  III.,  certain  proceedings  are  referred  to 
in  an  Inspeximus  as  having  taken  place  in  the  I7th  Edward  II.,  "  devant  Sire 
Henry  de  Staunton  et  ses  compaignons  justices  a  lez  plez  le  dit  vie'  piere 
tenir  assignez." — 2  Rot.  Parl.  427. 


90  REIGN  OF  EDWARD  III.  [1343. 

There  was  no  other  Chief  Justice  of  much  note  till  Sir 
Robert  Parnyng,  who,  for  his  great  learning  and  ability, 
was  placed  in  the  "  marble  chair,"  and  whom  I  have  al- 
ready commemorated  in  the  LIVES  OF  THE  CHANCEL- 
LORS.1 

After  an  obscure  Chief  Justice,  called  SIR  WILLIAM 
SCOTT,"  came  a  very  eminent  but  very  unprincipled  one, 
SIR  WILLIAM  DE  THORPE,  who  was  at  first  supposed  to 
be  an  ornament  to  his  profession,  but  who  brought  deep 
disgrace  upon  it.  From  an  obscure  origin  he  rose  to 
power  and  wealth,  without  being  a  churchman — a  very 
unusual  occurrence  in  those  days ;  but  the  law  was  be- 
coming what  it  has  since  continued,  one  of  the  ties  by 
which  the  middling  and  lower  ranks  in  England  are 
bound  up  with  the  aristocracy — preventing  the  separation 
of  the  community  into  the  two  casts  of  noble  and  roturier, 
which  has  been  so  injurious  in  the  continental  states. 

Having  with  difficulty  obtained  an  adequate  education, 
soon  after  his  call  to  the  bar,  he  got  business  and  favor 
by  singular  zeal  for  his  clients  and  subserviency  to  his 
patrons.  While  of  less  than  ten  years'  standing  as  a 
barrister,  he  received  the  high  rank  of  King's  Serjeant, 
and  the  following  year  he  was  made  Attorney-General, 
and  was  knighted.  He  remained  in  this  office  five  years, 
during  which  time  he  had  the  good  fortune  to  gain  the 
personal  confidence  of  Edward  II.,  who  was  in  the  habit 
of  consulting  him  respecting  the  most  expedient  manner 
of  managing  the  House  of  Commons,  and  obtaining  sup- 
plies to  carry  on  the  French  war.  In  1347  he  was  ele- 
vated to  the  office  of  Chief  Justice  of  the  King's  Bench, 
and  he  was  for  a  time  the  King's  principal  adviser.  On 
the  premature  death  of  Parnyng,  the  great  Seal  was  put 
into  the  hands  of  men  of  little  experience  in  business, 
and  Lord  Chief  Justice  Thorpe  was  intrusted  with  the 
domestic  government  of  the  kingdom. 

At  the  parliament  held  on  the  King's  return  after  the 
glorious  battle  of  Cresci,  Sir  William  Thorpe  was  em- 
ployed, in  place  of  the  Chancellor,  to  declare  the  causes 
of  the  summons ;  and  he  very  dextrously  flattered  the 
Commons  by  telling  them  that  "  it  was  the  King's  special 
desire  to  be  advised  by  them  respecting  the  mode  of  car- 

1  Vol.  i.  ch.  xiv.  *  Dug.  Chr.  Ser.  44. 


1349-]  WILLIAM    THORPE.  91 

tying  on  the  war,  and,  next,  how  the  peace  of  the  nation 
might  be  better  kept."1 

After,  grave  deliberation,  the  Commons  answered  that 
"  they  were  not  able  to  advise  any  thing  respecting  the 
war,  and,  therefore,  desired  to  be  excused  as  to  that  point 
—being  willing  to  confirm  and  establish  whatever  the 
council  and  the  nobles  should  determine  thereupon.  But 
as  to  better  keeping  the  peace  of  the  nation,  their  advice 
was,  that  in  every  county  there  should  be  six  persons,  of 
whom  two  to  be  the  greatest  men  in  it,  two  knights,  and 
two  men  of  the  law,  or  more  or  less  as  need  should  be, 
and  they  to  have  power  and  commission  out  of  Chancery 
to  hear  and  determine  matters  concerning  the  peace. 
And  because  they  had  been  so  long  in  parliament,  to 
their  great  cost  and  damage,8  they  might  have  a  speedy 
answer  to  their  petitions,  in  order  to  get  soon  back  to 
their  own  homes."  On  Thorpe's  suggestion,  the  measure 
so  recommended  was  promised,  and  hence  our  Justices 
of  the  Peace  and  Quarter  Sessions.  But,  there  being  still 
an  unwillingness  to  vote  an  adequate  supply,  parlia- 
ment was  dissolved,  and  great  pains  were  used  in  in- 
fluencing the  elections  for  the  new  one  which  was  called. 

When  it  met,  Chief  Justice  Thorpe  again  made  the 
speech  by  which  the  session  was  opened,  and  tried  to 
rouse  the  indignation  of  the  Commons  by  asserting  that 
"  the  French  had  broken  the  conditions  of  the  truce 
lately  granted  to  them  at  Calais,  and  were  preparing  a 
puissant  army  wherewith  to  invade  the  realm."  He  there- 
fore urged  that  "  they  should  be  armed  betimes  against 
the  worst  which  might  happen,  and  see  that  this  war, 
which  was  undertaken  by  the  advice  and  consent  of 
the  parliament,  might  have  a  prosperous  ending."  A 
liberal  supply  was  granted,  and  the  Chief  Justice  speed- 
ily, in  the  King's  name,  pronounced  the  prorogation.* 

Although  he  now  seemed  so  powerful  and  prosperous, 
disgrace  and  ruin  were  hanging  over  him.  Parliament 
again  met  in  the  following  year,  but,  instead  of  opening 
it  with  royal  pomp  in  the  King's  name,  he  stood  at  the 

1  During   the  Plantagenet  reigns,   there  are  frequent   instances  of    the 
King  consulting  the  Commons  on  questions  of  foreign,  as  well  as  domestic 
policy. 

2  The  session  had  lasted  above  a  fortnight, 
1  I  Parl.  Hist.  115 — nS. 


92  REIGN    OF    EDWARD    III.  [1350. 

bar  of  the  House  of  Lords  as  a  criminal.  He  had  been 
detected  in  several  gross  acts  of  bribery,  for  which  he 
was  now  impeached.  The  record  of  his  trial  is  not  pre- 
served, and  we  have  no  particulars  of  the  offenses  laid 
to  his  charge.  The  common  tradition  is,  that  sentence 
of  death  was  actually  passed  upon  him ;  and  Oliver  St. 
John,  in  his  famous  speech  on  ship-money,  in  the  reign 
of  Charles  I.,  says, — "  Sir  William  Thorpe,  Chief  Justice 
of  the  King's  Bench  in  Edward  III.'s  time,  having  of 
five  persons  received  five  several  bribes,  which  in  all 
amounted  to  £100,  was  for  this  alone  adjudged  to  be 
hanged,  and  his  lands  and  goods  forfeited."  I  cannot 
help  thinking,  however,  that  this  is  an  exaggeration  ;  no 
treason  was  alleged  against  the  Chief  Justice,  and,  as 
mere  bribery  could  not  be  construed  into  a  capital 
offense  by  any  known  law,  he  could  not  have  received 
such  a  sentence,  unless  under  an  act  of  attainder ;  and 
there  is  no  ascertained  instance  of  such  a  proceeding 
before  the  reign  of  Henry  VIII.  The  entry  in  the  Close 
Roll,  recording  the  appointment  of  a  new  Chief  Justice, 
merely  says,  "  Will,  de  Thorpe,  Capitalis  Justic.  pro 
quibusdam  maleficiis,  &c.,  omnia  bona  terras,  &c.,  foris- 
fccit."1  It  is  possible  that  a  capital  sentence  might  have 
been  pronounced  ;  and  St.  John,  pretending  to  have 
seen  the  original  record,  says,  "  The  reason  of  this  record 
is  entered  in  the  Roll  in  these  words,  '  Quia  prasdictus 
Willielmus  Thorpe,  qui  sacramentum  domini  regis  erga 
populum  suum  habuit  ad  custodiendum,  fregit  malitiose, 
false  et  rebelliter,  quantum  in  ipso  fuit,'  because  that  he 
as  much  as  in  him  lay  had  broken  the  King's  oath  unto 
the  people  which  the  King  had  intrusted  him  withal. 
The  next  year, -25  Edward  III.,  it  was  debated  in  parlia- 
ment whether  this  judgment  was  legal  et  nullo  contra- 
diccnte,  it  was  declared  to  be  just  and  according  to  the 
law  ;  and  that  the  same  judgment  may  be  given  in  time 
to  come  upon  the  like  occasion.  This  case  is  in  point 
that  it  is  death  for  any  judge  wittingly  to  break  his  oath 
or  any  part  of  it."  Yet  I  suspect  that  the  patriotic 
orator,  inveighing  against  the  judges  who  had,  contrary 
to  their  oaths,  decided  for  the  legality  of  ship-money, 
invented  the  capital  sentence  upon  Thorpe,  whose  guilt 

1  Claus.  24  Ed.  Ill,  in  dorso,  m.  4. 


1353]  WILLIAM    SHARESHALL.  93 

he  represents  as  comparatively  venial.1  The  delinquent 
certainly  did  not  suffer  the  last  penalty  of  the  law ;  but, 
being  degraded  from  his  office,  and  stripped  of  his  ill- 
gotten  wealth,  he  languished  a  few  years,  and  died  a 
natural  death." 

He  was  succeeded  by  Sir  William  Shareshall,  a  Puisne 
Judge  of  the  Common  Pleas,3  of  whom  little  is  known 
except  that  he  was  employed  to  make  the  opening 
speech  to  the  two  Houses  at  the  commencement  of 
three  successive  parliaments. 

On  the  first  occasion  he  enlarged  upon  the  internal 
state  of  the  country,  and  upon  his  recommendation  were 
passed  the  famous  "  Statute  of  Treasons,"  defining  crimes 
against  the  state,  and  the  "  Statute  of  Laborers,"  show- 
ing our  ancestors  to  have  been  then  under  the  delusion, 
now  so  fatal  to  our  continental  neighbors,  that  the 
"  organization  of  labor  "  is  a  fit  subject  for  legislation. 

In  the  following  year,  the  war  with  France  being  re- 
newed, the  Chief  Justice  thus  tried  to  excite  indignation 
and  to  obtain  supplies  : — 

"You  are  assembled  to  consider  the  title  of  our  Lord 
the  King  to  the  crown  of  France.  You  know  that 
Philip  de  Valois  usurped  it  all  his  life ;  and  not  only  so, 
but  testified  his  enmity  to  England  by  stirring  up  war 
against  our  King  in  Gascony,  and  other  dominions 
belonging  to  him,  seizing  upon  his  rights  and  pos- 
sessions, and  doing  all  possible  mischief  to  him  both 
by  sea  and  land.  In  former  parliaments  this  matter  has 
been  propounded  to  you  on  behalf  of  the  King,  and 
your  advice  requested  what  was  best  to  be  done.  After 
good  deliberation  you  declared  that  you  knew  no  other 

1  3  St.  Tr.  1273.     The  improbability  of  such  a  resolution  being  come  to 
in  the  25th  Ed.  III.  is  very  great  indeed,  when  we  consider  that  in  this  very 
year  Parliament  passed  the  famous  Statute  of  Treason  (25  Ed.  III.  st.  5.  c. 
2.),  by  which  the  subject  is  so  anxiously  guarded  against  such  vague  charges. 

2  We  are  not  told  the  amount  of  his  salary  as  Chief  Justice,  but  Dugdale 
says,  "  Sir  William  Thorpe,  21  Ed.  I.,  then  Chief   Justice  of   the  King's 
Bench,  was  allowed  out  of  the  King's  wardrobe  at  the  Feast  of  All  Saints, 
for  his  Winter  Robes,  half  a  cloth  colour  curt,  three  furs  of  white  budg,  and 
one  hood  of  the  same  budg  :  and  for  his  livery  at  Christmas,  half  a  cloth 
likewise  colour  curt,  and  one  hood  curt,  one  hood  containing  xxxii  bellies  of 
minever  helf  pur,  one  fur  of  minever  containing  seven  tires  and  two  furs  of 
silk,  each  of  seven  tires." — Or.  Jur.  p.  98. 

*  Dug.  Cher.  Ser. 


94  REIGN    OF    EDWARD    III.  [1353. 

course  than  that  the  King,  procuring  allies,  should  go 
against  his  adversary  by  main  force,  and  to  enable  him 
to  do  this  you  promised  to  aid  him  with  body  and  goods. 
Whereupon    he    made    alliances   with    several    foreign 
princes  and  powers,  and  by  the  help  of  the  good  people 
of  England,  and  the  blessing  of  God,  he  gained  great 
victories,  yet   without  being   able   to   obtain  a  lasting 
peace.      The  King  has  assented  to  truces,  but  his  ad- 
versary deceitfully  broke  these,  actuated  by  implacable 
malice  against  him  and  his  friends.     Now,  after  Philip's 
decease,  John,  his  son,  has  wrongfully  possessed  himself 
of  the  kingdom  of  France,  has  broken  the  existing  truce 
both  in  Gascony  and  Britany,  and  has  sent  to  Scotland 
to  renew  the  ancient  alliance  with  that  country,  tending 
to  the  utter  subversion  and  destruction  of  the  people  of 
England.     Wherefore  the  King,  much  thanking  you,  his 
faithful  Commons,  for  the  aids  you  have  already  given 
him,  and  for  the  good  will  he  has  always  found  in  you, 
now  submits  the  matter  to  your  consideration,  and  prays 
that  you  will  take  time  to  consult  about  it,  and  that 
at  sunrise  on  the  morrow  you  will  come  to  the  Painted 
Chamber  to  hear  if  the  King  will  say  anything  further  to 
you,  and  to  show  him  your  grievances,  so  that  relief  may 
be  given  to  them  at  this  meeting.     Further,  I  charge  the 
Commons,  in  the  King's  name,  to  shorten  your  stay  in 
town,  and    that,  for  the  quicker  despatch  of  business, 
you  immediately  make  choice  of  twenty-four  or  thirty 
persons  out  of  your  whole  number,  and  he  will  send  a 
number  of  Lords  to  confer  with  them  about  the  business 
of  the  nation." 

This  harangue  of  the  Chief  Justice  was  very  favorably 
received,  and  the  Commons  granted  to  the  King  three 
tenths  and  three  fifteenths,  "in  order  to  supply  his  great 
necessities."1 

Chief  Justice  Shareshall's  final  political  performance 
was  in  April,  1355,  when,  on  the  first  day  of  the  parlia- 
ment, to  induce  the  Commons  vigorously  to  carry  on  the 
war,  he  expressed  the  King's  earnest  desire  to  make 
peace  on  honorable  terms ;  and  he  asked  them  "  if  they 
would  agree  to  a  peace,  if  it  could  be  had  by  treaty?" 
They  answered,  "  that  what  should  be  agreeable  to  the 

1  I  ParL  Hist.  119. 


1366.]  JOHN    DE    CAVENDISH.  95 

King  and  his  council,  should  be  agreeable  to  them." 
Alarmed  by  their  pacific  tone,  and  trusting  to  their  anti- 
Gallican  prejudices,  he  ventured  to  ask  them  "  if  they 
consented  to  a  perpetual  peace  if  it  might  be  had?" 
when,  to  his  great  annoyance,  "they  all  unanimously 
cried  out  'Yea!  yea!"'  However,  a  supply  was  ob- 
tained ;  and,  the  French  King  becoming  insolent  from 
the  belief  that  Edward's  subjects,  tired  of  the  war,  would 
desert  him,"  the  immortal  victory  of  Poictiers  followed. 

In  1358  the  office  of  Chief  Justice  of  the  King's  Bench 
was  again  vacant ;  but  whether  by  the  death  or  resigna- 
tion of  Shareshall,  I  have  been  unable  to  ascertain.  He 
was  succeeded  by  Sir  Henry  Green,  of  whom  I  find 
nothing  memorable.  Then  came  the  famous  Sir  John 
Knyvet,  who  afterwards  held  the  Great  Seal,  and  of 
whom  I  have  already  told  all  that  I  know.1 

Next  we  come  to  a  Chief  Justice  whose  career  excites 
considerable  interest  :  Sir  John  de  Cavendish,  the  an- 
cestor of  the  Duke  of  Devonshire.  The  original  name 
of  the  family  was  Gernon.  or  Gernum  ;  and  they  changed 
it  on  marrying  the  heiress  of  the  manor  of  Cavendish, 
in  the  county  of  Suffolk.  This,  however,  was  only  a 
small  possession  ;  and  John,  the  son  of  the  marriage, 
being  of  an  aspiring  nature,  and  seeing  that  in  peaceable 
times  promotion  was  to  be  gained  by  civil  rather  than 
military  service,  studied  the  law,  was  called  to  the 
bar,  and  soon  gained  the  first-rate  practice  as  an  ad- 
vocate. Such  was  his  reputation,  that,  in  the  year  1366, 
Edward  III.,  after  the  peace  of  Bretigni,  being  desirous 
of  making  himself  popular  by  good  judicial  appoint- 
ments, raised  John  de  Cavendish  to  the  office  of  Chief 
Justice  of  the  King's  Bench,  although  he  had  not  filled 
the  office  of  Attorney  or  Solicitor-General,  or  even 
reached  the  dignity  of  the  coif.  The  appointment  gave 
universal  satisfaction  ;  and,  with  De  Cavendish  presiding 
over  the  common  law,  and  Knyvet  over  equity,  it  was 
admitted  that  justice  had  never  been  so  satisfactorily 
administered  in  Westminster  Hall. 

Lord  Chief  Justice  Cavendish  held  his  office  sixteen 
years,  being  reappointed  on  the  accession  of  Richard  II., 
with  an  advance  in  his  salary  to  100  marks  a  year.  At 

1  Lives  of  the  Chancellors,  vol.  i.  pp.  226. 


96  REIGN    OF    EDWARD    III.  [1382. 

last  he  fell  a  victim  to  the  brutality  of  the  populace 
in  Wat  Tyler's  insurrection.  After  that  rebel  chief  had 
been  killed  in  Smithfield  by  Sir  William  Walworth,  there 
was  a  rising  in  Norfolk  and  Suffolk,  under  the  conduct 
of  a  leader  much  more  ferocious,  who  called  himself 
Jack  Straw,  and  incited  his  followers  to  more  frightful 
devastations  than  any  ever  committed  before  or  since  in 
a  jacquerie  movement  in  England,  where,  in  the  worst 
times,  some  respect  has  been  shown  to  the  influence  of 
station  and  the  dictates  of  humanity.  A  band  of  them, 
near  50,000  strong,  as  infuriated  as  the  canaille  of  Paris 
or  the  peasants  of  Gallicia  in  the  crisis  of  a  revolution, 
marched  to  the  Chief  Justice's  mansion  at  Cavendish, 
which  they  plundered  and  burned.  The  venerable  Judge 
made  his  escape,  but  was  taken  in  a  cottage  in  the 
neighborhood.  Unmoved  by  his  gray  hairs,  they  carried 
him  in  procession  to  Bury  St.  Edmund's,  as  if  to  open 
the  assizes,  and,  after  he  had  been  subjected  to  a  mock 
trial  in  the  market-place,  he  was  sentenced  to  die  ;  Jack 
Straw's  Chief  Justice  magnanimously  declaring,  "  that, 
in  respect  of  the  office  of  dignity  which  his  brother 
Cavendish  had  so  long  filled,  instead  of  being  hanged,  he 
should  be  beheaded."  It  was  resolved,  however,  that  he 
should  be  treated  with  insult  as  well  as  with  cruelty  ; 
for  his  head  being  immediately  struck  off,  it  was  placed 
in  the  pillory  amidst  the  savage  yells  and  execrations  of 
the  bystanders.1 

He  seems  to  have  been  moderate  in  his  accumulation 
of  wealth  ;  for  he  added  very  little  to  his  landed  estates, 
and  his  posterity  for  some  generations  remained  in  ob- 
scurity. The  next  eminent  Cavendish  we  read  of  was 
Sir  William,  lineally  descended  from  the  Chief  Justice's 
eldest  son,  John.  This  individual,  at  starting,  was  not 
very  high  in  office,  being  only  gentleman-usher  to  Car- 
dinal Wolsey.  But  he  will  ever  be  remembered  with 
honor  for  his  affectionate  fidelity  to  his  master,  and  for 
his  inimitable  Life  of  him,  the  earliest  and  one  of  the 
very  best  specimens  of  English  biography.  After  Wol- 
sey's  fall,  he  was  taken  into  favor  by  Henry  VIII.,  and 
became  auditor  of  the  Court  of  Augmentations,  Treas- 
urer of  the  Chamber,  and  a  Privy  Councillor.  Taking 

1  Walsingham. 


I382.] 


JOHN    DE    CAVENDISH. 


97 


the  side  of  the  Reformation,  he  received  under  Edward 
VI.  large  grants  of  abbey  lands  in  the  county  of  Derby. 
His  son  was  ennobled  in  the  reign  of  James  I.  by  the 
title  of  Baron  Cavendish.  In  a  subsequent  generation, 
there  were  two  dukedoms  in  the  family :  Cavendish, 
Duke  of  Devonshire,  still  flourishing;  and  Cavendish, 
Duke  of  Newcastle,  which  became  extinct. 
1—7- 


CHAPTER  III. 

CHIEF    JUSTICES    TILL    THE    DEATH    OF    SIR    WILLIAM 
GASCOYNE. 

WE  next  come  to  a  Chief  Justice  of  the  King's 
Bench  who  actually  suffered    the    last  penalty 
of  the  law — and  deservedly — in  the  regular  ad- 
ministration of  retributive  justice, — Sir  Robert  Tresilian, 
— hanged  at  Tyburn. 

I  can  find  nothing  respecting  his  origin  or  education, 
except  a  doubtful  statement  that  he  was  of  a  Cornish 
family,  and  that  he  was  elected  a  fellow  of  Exeter  Col- 
lege, Oxford,  in  1354.'  As  far  as  I  know,  he  is  the  first 
and  last  of  his  name  to  be  found  in  our  judicial  or  his- 
torical records.  The  earliest  authentic  notice  of  him  is 
at  the  commencement  of  the  reign  of  Richard  II.,  when 
he  was  made  a  serjeant-at-law,  and  appointed  a  Puisne 
Judge*of  the  Court  of  King's  Bench.'  The  probability 
is,  that  he  had  raised  himself  from  obscurity  by  a  mix- 
ture of  good  and  evil  arts.  He  showed  learning  and 
diligence  in  the  discharge  of  his  judicial  duties  ;  but,  in- 
stead of  confining  himself  to  them,  he  mixed  deeply  in 
politics,  and  showed  a  determination,  by  intrigue,  to 
reach  power  and  distinction.  He  devoted  himself  to 
De  Vere,  the  favorite  of  the  young  king,  who,  to  the 
great  annoyance  of  the  princes  of  the  blood,  and  the 
body  of  the  nobility,  was  created  Duke  of  Ireland,  was 
vested  for  life  with  the  sovereignty  of  that  island,  and 
had  the  distribution  of  all  patronage  at  home.  By  the 

1  Gentleman's  Magazine,  vol.  Ixiv.  p.  325.  I  suspect  that  he  is  assigned 
to  Cornwall  only  on  the  authority  of — 

"  By  Tre,  Pol  and  Pen, 

You  know  Cornish  men." 
•Close  Roll,  I  Rich  II.     Liberal,  ab  anno  i.  usque  ult. — Ric.  II.  m.  15. 


1382.]  ROBERT    TRESILIAN.  99 

influence  of  this  minion,  Tresilian,  soon  after  the  melan- 
choly end  of  Sir  John  Cavendish,  was  appointed  Chief 
Justice  of  the  King's  Bench  ;  and  he  was  sent  into  Essex 
to  try  the  rebels.  The  King  accompanied  him.  It  is 
said  that,  as  they  were  journeying,  "  the  Essex  men,  in 
a  body  of  about  500,  addressed  themselves  barefoot  to 
the  King  for  mercy,  and  had  it  granted  upon  condition 
that  they  should  deliver  up  to  justice  the  chief  instru- 
ments of  stirring  up  the  rebellion  ;  which  being  accord- 
ingly done,  they  were  immediately  tried  and  hanged,  ten 
or  twelve  on  a  beam,  at  Chelmsford,  because  they  were 
too  many  to  be  executed  after  the  usual  manner,  which 
was  by  beheading."1 

Tresilian  now  gained  the  good  graces  of  Michael,  de 
la  Pole,  the  Lord  Chancellor,  and  was  one  of  the  princi- 
pal advisers  of  the  measures  of  the  Government,  being 
ever  ready  for  any  dirty  work  that  might  be  assigned  to 
him.  In  the  year  1385,  it  was  hoped  that  he  might  have 
got  rid,  by  an  illegal  sentence,  of  John  of  Gaunt,  who' 
had  become  very  obnoxious  to  the  King's  favorites. 
"  For  these  cunning  flatterers,  having,  by  forged  crimes 
and  accusations,  incensed  the  King  against  him,  con- 
trived to  have  him  suddenly  arrested,  and  tried  before 
Judge  Tresilian,  who,  being  perfectly  framed  to  their  in- 
terests, would  be  ready  enough,  upon  such  evidence  as 
they  should  produce,  to  condemn  him."9  But  the  plot 
got  wind,  and  the  Duke,  flying  to  Pontefract  Castle, 
fortified  himself  there  till  his  retainers  came  to  his 
rescue. 

In  the  following  year,  when  there  was  a  change  of 
ministry  according  to  the  fashion  of  those  times,  Tre- 
silian was  in  great  danger  of  being  included  in  the  im- 
peachment which  proved  the  ruin  of  the  Chancellor ;  but 
he  escaped  by  an  intrigue  with  the  victorious  party,  and 
he  was  suspected  of  having  secretly  suggested  the  com- 
mission signed  by  Richard,  and  confirmed  by  Parlia- 
ment, under  which  the  whole  power  of  the  state  was 
transferred  to  a  commission  of  fourteen  Barons.  He 
remained  very  quiet  for  a  twelvemonth,  till  he  thought 
that  he  perceived  the  new  ministers  falling  into  unpopu- 
larity, and  he  then  advised  that  a  bold  effort  should  be 
1  Kennet,  i.  248.  *  Ib.  253. 


ioo  REIGN    OF    RICHARD    II.  [1387 

made  to  crush  them.  Meeting  with  encouragement,  he 
secretly  left  London,  and,  being  joined  by  the  Duke  of 
Ireland,  went  to  the  King,  who  was  at  Nottingham  in  a 
progress  through  the  midland  counties.  He  then  under- 
took, through  the  instrumentality  of  his  brother  Judges, 
to  break  the  commission,  and  to  restore  the  King  and 
the  favorite  to  the  authority  of  which  it  had  deprived 
them.  His  plan  was  immediately  adopted,  and  the 
Judges,  who  had  just  returned  from  the  summer  assizes, 
were  all  summoned  in  the  King's  name  to  Nottingham. 

On  their  arrival,  they  found  not  only  a  string  of  ques- 
tions, but  answers,  prepared  by  Tresilian.  These  he 
himself  had  signed,  and  he  required  them  to  sign. 
Belknappe,  the  Chief  Justice  of  the  Common  Pleas,  and 
the  others,  demurred,  seeing  the  peril  to  which  they 
might  be  exposed ;  but,  by  promises  and  threats,  they 
were  induced  to  acquiesce.  The  following  record  was 
accordingly  drawn  up,  that  copies  of  it  might  be  dis- 
tributed all  over  England  : — 

"  Be  it  remembered,  that  on  the  25th  of  Aug.,  in  the 
nth  year  of  the  reign  of  K.  Rich.  II.,  at  the  castle  of 
Nottingham,  before  our  said  lord  the  King,  Rob.  Tre- 
silian, chief  justice  of  England,  and  Robt.  Belknappe, 
chief  justice  of  the  common  bench  of  our  said  lord  the 
King,  John  Holt,  Roger  Fulthorp,  and  Wm.  de  Burg, 
knights,  justices,  &c.,  and  John  de  Lokton,  the  King's 
serjcant-at-law,  in  the  presence  of  the  lords  and  other 
witnesses  under-written,  were  personally  required  by  our 
said  lord  the  King,  on  the  faith  and  allegiance  wherein 
to  him  the  said  King  they  are  bound,  to  answer  faith- 
fully unto  certain  questions  hereunder  specified,  and  to 
them  then  and  there  truly  recited,  and  upon  the  same  to 
declare  the  law  according  to  their  discretion,  yiz : — 

"I.  It  was  demanded  of  them,  'Whether  that  new 
statute,  ordinance,  and  commission,  made  and  published 
in  the  last  parl.  held  in  Westm.,  be  not  derogatory  to  the 
royalty  and  prerogative  of  our  said  lord  the  King  ?  '  To 
which  they  unanimously  answered  that  the  same  are  de- 
rogatory thereunto,  especially  because  they  were  against 
his  will. 

"  2.  '  How  those  are  to  be  punished  who  procured  that 
statute  and  commission?' — A.  That  they  were  to  be 


1387.]  ROBERT    TRESILIAN.  101 

punished  with  death,  except  the  King  would  pardon 
them. 

"  3.  '  How  those  are  to  be  punished  who  moved  the 
King  to  consent  to  the  making  of  the  said  statute?  ' — A. 
That  they  ought  to  lose  their  lives  unless  his  Maj.  would 
pardon  them. 

"  4.  'What  punishment  they  deserved  who  compelled, 
straightened,  or  necessitated  the  King  to  consent  to  the 
making  of  the  said  statute  and  commission  ?  ' — A.  That 
they  ought  to  suffer  as  traitors. 

"  5.  '  How  those  are  to  be  punished  who  hindered  the 
King  from  exercising  those  things  which  appertain  to  his 
royalty  and  prerogative  ?  ' — A.  That  they  are  to  be  pun- 
ished as  traitors. 

"  6.  '  Whether  after  in  a  parl.  assembled,  the  affairs  of 
the  kingdom,  and  the  cause  of  calling  that  parl.  are  by 
the  King's  command  declared,  and  certain  articles  limited 
by  the  King  upon  which  the  lords  and  commons  in  that 
parl.  ought  to  proceed  ;  if  yet  .the  said  lords  and  com- 
mons will  proceed  altogether*upon  other  articles  and  af- 
fairs, and  not  at  all  upon  those  limited  and  proposed  to 
them  by  the  king,  until  the  king  shall  have  first  answered 
them  upon  the  articles  and  matters  so  by  them  started 
and  expressed,  although  the  King's  command  be  to  the 
contrary ;  whether  in  such  case  the  King  ought  not  to 
have  the  governance  of  the  parl.  and  effectually  overrule 
them,  so  as  that  they  ought  to  proceed  first  on  the  mat- 
ters proposed  by  the  King  :  or  whether,  on  the  contrary, 
the  lords  and  commons  ought  first  to  have  the  king's  an- 
swer upon  their  proposals  before  they  proceed  further  ? ' 
— A.  That  the  King  in  that  behalf  has  the  governance, 
and  may  appoint  what  shall  be  first  handled,  and  so  gra- 
dually what  next  in  all  matters  to  be  treated  of  in  parl., 
even  to  the  end  of  the  parl.  ;  and  if  any  act  contrary  to 
the  King's  pleasure  made  known  therein,  they  are  to  be 
punished,  as  traitors. 

"  7.  '  Whether  the  king,  whenever  he  pleases,  can  dis- 
solve the  parl.  and  command  the  lords  and  commons  to 
depart  from  thence,  or  not  ?  ' — A.  That  he  can  ;  and  if  any 
;>ne  shall  then  proceed  in  parl.  against  the  King's  will,  he 
3  to  be  punished  as  a  traitor. 

"  8.  '  Since  the  King  can,  whenever  he  pleases,  remove 


io2  RETGN    OF    RICHARD    II.  [^S;. 

any  of  his  judges  and  officers,  and  justify  or  punish  them 
for  their  offenses  ;  whether  the  lords  and  commons  can, 
without  the  will  of  the  King,  impeach  in  parl.  any  of  the 
said  judges  or  officers  for  any  of  their  offenses?' — A. 
That  they  cannot ;  and  if  any  one  should  do  so,  he  is  to 
be  punished  as  a  traitor. 

"9.  'How  he  is  to  be  punished  who  moved  in  parl. 
that  the  statute  should  be  sent  for  whereby  Edw.  II.  (the 
King's  great  grandfather)  was  proceeded  against  and  de- 
posed in  parl. ;  by  means  of  sending  for  and  imposing 
which  statute,  the  said  late  statute,  ordinance,  and  com- 
mission were  derived  and  brought  forth  in  parl.?' — A. 
That  as  well  he  that  so  moved,  as  he  who  by  pretense 
of  that  motion  carried  the  said  statute  to  the  parl.,  are 
traitors  and  criminals  to  be  punished  with  death. 

"  10.  '  Whether  the  judgment  gjven  in  the  last  parl. 
held  in  Westm.  against  Mich,  de  la  Pole,  earl  of  Suffolk, 
was  erroneous  and  revocable,  or  not?  ' — A.  That  if  that 
judgment  were  now  to  be  given,  they  would  not  give  it ; 
because  it  seems  to  them  that  the  said  judgment  is  re- 
vocable, as  being  erroneous  in  every  part  of  it. 

"  In  testimony  of  all  which,  the  judges  and  Serjeants 
aforesaid,  to  those  presents  have  put  their  seals  in  the 
presence  of  the  rev.  lords,  Alex.  abp.  of  York,  Rob.  abp. 
of  Dublin,  John  bp.  of  Durham,  Tho.  bp.  of  Chichester, 
and  John  bp.  of  Bangor,  Rob.  duke  of  Ireland,  Mich,  earl 
of  Suffolk,  John  Rypon,  clerk,  and  John  Blake,  esq.  ; 
given  the  place,  day,  month,  and  year  aforesaid." 

Tresilian  exultingly  thought  that  he  had  not  only  got 
rid  of  the  obnoxious  Commission,  but  that  he  had  anni- 
hilated the  power  of  Parliament  by  the  destruction  of 
parliamentary  privilege,  and  by  making  the  proceedings 
of  the  two  Houses  entirely  dependent  on  the  caprice  of 
the  Sovereign. 

He  then  attended  Richard  to  London,  where  the  opin- 
ion of  the  Judges  against  the  legality  of  the  Commission 
was  proclaimed  to  the  citizens  at  the  Guildhall ;  and  all 
who  should  act  under  it  were  declared  traitors.  A  reso- 
lution was  formed  to  arrest  the  most  obnoxious  of  the 
opposite  faction,  and  to  send  them  to  take  their  trials  be- 
fore the  Judges  who  had  already  committed  themselves 
on  the  question  of  law  ;  and,  under  the  guidance  of  Tresil- 


1387.]  ROBERT    TRESILIAN.  103 

Ian,  a  bill  of  indictment  was  actually  prepared  against 
them  for  a  conspiracy  to  destroy  the  royal  prerogative. 
Thomas  Ush,  the  under  sheriff,  promised  to  pack  a  jury 
+o  convict  them  ;  Sir  Nicholas  Brambre,  who  had  been 
thrice  Lord  Mayor,  undertook  to  secure  the  fidelity  of 
the  "itizens  ;  and  all  the  City  Companies  swore  that  they 
would  live  and  die  with  the  King,  and  fight  against  his 
enemies  to  their  last  breath.  Arundel,  Bishop  of  Ely, 
was  still  Chancellor;  but  Tresilian  considered  that  the 
Great  Seal  was  now  within  his  own  grasp,  and  after  the 
recent  examples,  in  Parnynge  and  Knyvet,  of  Chief 
Justices  becoming  Chancellors,  he  anticipated  no  obstacle 
to  hk  elevation. 

At  such  a  slow  pace  did  news  travel  in  those  days,  that, 
on  the  night  of  the  roth  of  November,  Richard  and  his 
Chief  Justice  went  to  bed  thinking  that  their  enemies 
were  annihilated,  and  next  morning  they  were  awoke  by 
the  intel.igence  that  a  large  force,  under  the  Duke  of 
Gloucester  and  the  Earls  of  Arundel  and  Nottingham, 
was  encan.ped  at  Highgate.  The  confederate  Lords, 
hearing  of  the  proceedings  at  Nottingham,  had  imme- 
diately rusl.ed  to  arms,  and  followed  Richard  towards 
London,  with  an  army  of  40,000  men.  The  walls  of  Lon- 
don were  sufficient  to  repel  a  sudden  assault  ;  and  a  royal 
proclamation  forbade  the  sale  of  provisions  to  the  rebels 
— in  the  hope  that  famine  might  disperse  them.  But, 
marching  round  by  Hackney,  they  approached  Aldgate, 
and  they  appeared  so  formidable,  that  a  treaty  was  en- 
tered into,  ac:ording  to  which  they  were  to  be  supplied 
with  all  necessaries,  on  payment  of  a  just  price,  and 
deputies  fron.  them  were  to  have  safe  conduct  through 
the  City  on  their  way  to  the  king  at  Westminster.  Rich- 
ard himself  agieed  that  on  the  following  Sunday  he  would 
receive  the  deputies,  sitting  on  his  throne  in  Westminster 
Hall. 

At  the  appo.nted  hour  he  was  ready  to  receive  them, 
but  they  did  rot  arrive,  and  he  asked  "  how  it  fortuned 
that  they  kep:  not  their  promise?"  Being  answered, 
"  Because  there  is  an  ambush  of  a  thousand  armed  men 
or  more  in  a  place  called  the  Mews,  contrary  to  cov- 
enant ;  and  therefore  they  neither  come,  nor  hold  you 
faithful  to  your  word," — he  said,  with  an  oath,  that  "  he 


io4  REIGN    OF    RICHARD    II.  [1389. 

knew  of  no  such  thing,"  and  he  ordered  the  sheriffs  of 
London  to  go  thither  and  kill  all  they  could  lay  hands 
on.  The  truth  was,  that  Sir  Nicholas  Brambre,  in  con- 
cert with  Tresilian,  had  planted  an  ambush  near  Charing 
Cross,  to  assassinate  the  Lords  as  they  passed ;  but,  in 
obedience  to  the  King's  order,  the  men  were  sent  back 
to  the  City  of  London.  The  Lords,  at  last,  reached 
Westminster,  with  a  gallant  troop  of  gentlemen  ;  and  as 
soon  as  they  had  entered  the  great  hall,  and  saw  the 
King  in  his  royal  robes  sitting  on  the  throne,  with  the 
crown  on  his  head  and  the  sceptre  in  his  hand,  they 
made  obeisance  three  times  ?.s  they  advanced,  and  when 
they  reached  the  steps  of  the  throne  they  knelt  down 
before  him  with  all  seeming  humility.  He,  feigning  to 
be  pleased  to  see  them,  rose  and  took  each  of  tJiem  by 
the  hand,  and  said,  "  he  would  hear  their  plairt,  as  he 
was  desirous  to  render  justice  to  all  his  subjects." 
Thereupon  they  said,  "  Most  Dread  Sovereign,  we  ap- 
peal of  high  treason  Robert  Tresilian,  that  fa/se  justice, 
Nicholas  Brambre,  that  disloyal  knight ;  the  Archbishop 
of  York;  the  Duke  of  Ireland  ;  and  the  Earl  of  Suffolk  :" 
— and,  to  prove  their  accusation  to  be  true,  they  threw 
down  their  gauntlets,  protesting,  by  their  oaths,  that 
they  were  ready  to  prosecute  it  to  battle.  "  Nay,"  said 
the  King,  "  not  so  ;  but  in  the  next  parliament  (which 
we  do  appoint  beforehand  to  begin  the  moirow  after  the 
Purification  of  our  Lady),  both  they  and  you,  appearing, 
shall  receive  according  to  law  what  law  doti  require,  and 
right  shall  be  done." 

It  being  apparent  that  the  confederate  Lords  had  a 
complete  ascendancy,  the  accused  parties  fled.  The 
Duke  of  Ireland  and  Sir  Nicholas  Brambre  made  an  in- 
effectual attempt  to  rally  a  military  force  ;  but  Chief 
Justice  Tresilian  disguised  himself,  and  remained  in  con- 
cealment till  he  was  discovered,  after  beiig  attainted  in 
the  manner  to  be  hereafter  described. 

The  elections  for  the  new  Parliament  ran  strongly  in 
favor  of  the  confederate  Lords ;  and,  0:1  the  day  ap- 
pointed for  its  meeting,  an  order  was  issued  under  their 
sanction  for  taking  into  custody  all  the  Judges  who  had 
signed  the  Opinion  at  Nottingham.  They  were  all  ar- 
rested while  they  were  sitting  on  the  bench,  except 


1389.]  ROBERT    TRESILIAN.  105 

Chief  Justice  Tresilian  ;  but  he  was  nowhere  to  be 
found. 

When  the  members  of  both  Houses  had  assembled  in 
Westminster  Hall,  and  the  King  had  taken  his  place  on 
the  throne,  the  five  Lords,  who  were  called  APPEL- 
LANTS, 

"  Entered  in  costly  robes,  leading  one  another  hand  in 
hand,  an  innumerable  company  following  them,  and,  ap- 
proaching the  King,  they  all  with  submissive  gestures 
reverenced  him.  Then  rising,  they  declared  their  ap- 
pellation by  the  mouth  of  their  speaker,  who  said,  '  Be- 
hold the  Duke  of  Gloucester  comes  to  purge  himself  of 
treasons  which  are  laid  to  his  charge  by  the  conspirators.' 
To  whom  the  Lord  Chancellor,  by  the  King's  command, 
answered,  '  My  Lord  Duke,  the  King  conceiveth  so 
honorably  of  you,  that  he  cannot  be  induced  to  believe 
that  you,  who  are  of  kindred  to  him,  should  attempt  any 
treason  against  him."  The  Duke  with  his  four  com- 
panions, on  their  knees,  humbly  gave  thanks  to  the 
King  for  his  gracious  opinion  of  their  fidelity.  And 
now,  as  a  prelude  to  what  was  going  to  be  acted,  each 
of  the  Prelates,  Lords,  and  Commons,1  then  assembled, 
had  the  following  oath  administered  to  them  upon  the 
rood  or  cross  of  Canterbury  in  full  parliament.:  'You 
shall  swear  that  you  will  keep,  and  cause  to  be  kept,  the 
good  peace,  quiet,  and  tranquillity  of  the  kingdom  ;  and 
if  any  will  do  to  the  contrary  thereof,  you  shall  oppose 
and  disturb  him  to  the  utmost  of  your  power ;  and  if 
any  will  do  any  thing  against  the  bodies  of  the  five 
Lords,  you  shall  stand  with  them  to  the  end  of  this 
present  parliament,  and  maintain  and  support  them  with 
all  your  power,  to  live  and  die  with  them  against  all  men, 
no  person  or  thing  excepted,  saving  always  your  legiance 
to  the  King  and  the  prerogatives  of  his  crown,  according 
to  the  laws  and  good  customs  of  the  realm.'  "a 

Written  articles  to  the  number  of  thirty-nine  were 
then  exhibited  by  the  appellants  against  the  appellees. 

1  It  will  be  observed,  that  although  the  Commons  took  this  oath,  they  had 
nothing  to  do  with  the  trial,  either  as  accusers  or  judges.  At  this  time 
there  might  be  an  appeal  of  treason  in  parliament  by  private  persons,  the 
Lords  being  the  judges  ;  but  all  appeals  of  treason  in  parliament  were 
taken  away  by  i  Hen.  IV.  c.  14. — See  Bract.  119.  a  ;  3  Inst.  132. 

*  I  St.  Tr.  89-101  ;  i  Par).  Hist.  196-210. 


106  REIGN    OF    RICHARD    II.  [1389. 

The  other  four  are  alleged  to  have  committed  the 
various  acts  of  treason  charged  upon  them  "  by.  the 
assent  and  counsel  of  Robert  Tresilian,  that  false  Jus- 
tice ";  and  in  most  of  the  articles  he  bears  the  brunt  of 
the  accusation.  Sir  Nicholas  Brambre  alone  was  in  cus- 
tody; and  the  others  not  appearing  when  solemnly 
called,  their  default  was  recorded,  and  the  Lords  took 
time  to  consider  whether  the  impeachment  was  duly  in- 
stituted, and  whether  the  facts  stated  in  the  articles 
amounted  to  high  treason.  Ten  days  thereafter,  judg- 
ment was  given  "  that  the  impeachment  was  duly  in- 
stituted, and  that  the  facts  stated  in  several  of  the 
articles  amounted  to  high  treason."  Thereupon,  the 
prelates  having  withdrawn,  that  they  might  not  mix  in 
an  affair  of  blood,  sentence  was  pronounced,  "  that  Sir 
Robert  Tresilian,  the  Duke  of  Ireland,  the  Archbishop 
of  York,  and  Earl  of  Suffolk,  should  be  drawn  and 
hanged  as  traitors  and  enemies  to  the  King  and  king- 
dom, and  that  their  heirs  should  be  disinherited  forever, 
and  that  their  lands  and  tenements,  goods  and  chattels, 
should  be  forfeited  to  the  King." 

Tresilian  might  have  avoided  the  execution  of  his  sen- 
tence, had  it  not  been  for  the  strangest  infatuation  re- 
lated of  any  human  being  possessing  the  use  of  reason. 
Instead  of  flying  to  a  distance,  like  the  Duke,  the  Arch- 
bishop, and  the  Earl,  none  of  whom  suffered — although 
his  features  were  necessarily  well  known,  he  had  come  to 
the  neighborhood  of  Westminster  Hall  on  the  first  day 
of  the  session  of  parliament ;  and,  even  after  his  own  at- 
tainder had  been  published,  trusting  to  his  disguise,  his 
curiosity  induced  him  to  remain  to  watch  the  fate  of  his 
associate,  Sir  Nicholas  Brambre. 

This  chivalrous  citizen,  who  had  been  knighted  for  the 
bravery  he  had  displayed  in  assisting  Sir  William  Wai- 
worth  to  kill  Wat  Tyler  and  to  put  down  the  rebellion,  hav- 
ing been  apprehended  and  lodged  in  the  Tower  of  Lon- 
don, was  now  produced  by  the  constable  of  the  Tower  to 
take  his  trial.  He  asked  for  further  time  to  advise  with 
his  counsel,  but  was  ordered  forthwith  to  answer  to  every 
point  in  the  articles  of  treason  contained.  Thereupon 
he  exclaimed,  "  Whoever  hath  branded  me  with  this  ig- 
nominious mark,  with  him  I  am  ready  to  fight  in  the 


1389.]  ROBERT    TRESILIAN.  107 

lists  to  maintain  my  innocency  whenever  the  King  shall 
appoint !"  "  This,"  says  a  chronicler,  "  he  spake  with  such 
a  fury,  that  his  eyes  sparkled  with  rage,  and  he  breathed 
as  if  an  Etna  lay  hid  in  his  breast ;  choosing  rather  to 
die  gloriously  in  the  field,  than  disgracefully  on  the  gib- 
bet." 

The  appellants  said  "  they  would  readily  accept  of  the 
combat,"  and,  flinging  down  their  gages  before  the  King, 
added,  "  we  will  prove  these  articles  to  be  true  to  thy 
head,  most  damnable  traitor !"  But  the  Lords  resolved, 
"  that  battle  did  not  lie  in  this  case ;  and  that  they 
would  examine  the  articles  with  the  proofs  to  support 
them,  and  consider  what  judgment  to  give,  to  the  advan- 
tage and  profit  of  the  King  and  kingdom,  and  as  they 
would  answer  before  God." 

They  adjourned  for  two  days,  and  met  again,  when  a 
number  of  London  citizens  appeared  to  give  evidence 
against  Brambre.  For  the  benefit  of  the  reader,  the 
chronicler  I  have  before  quoted  shall  continue  the 
story  : — 

"  Before  they  could  proceed  with  his  trial,  they  were 
interrupted  by  unfortunate  Tresilian,  who  being  got  upon 
the  top  of  an  apothecary's  house  adjoining  to  the  palace, 
and  descended  into  a  gutter  to  look  about  him  and  ob- 
serve who  went  into  a  palace,  was  discovered  by  cer- 
tain of  the  peers,  who  presently  sent  some  of  the  guard 
to  apprehend  him  ;  who,  entering  into  the  house  where 
he  was,  and  having  spent  long  time  in  vain  in  looking 
for  him,  at  length  one  of  the  guard  stept  to  the  master 
of  the  house,  and  taking  him  by  the  shoulder,  with  his 
dagger  drawn,  said,  thus,  '  Show  us  where  thou  hast  hid 
Tresilian,  or  else  resolve  thy  days  are  accomplished.' 
The  master,  trembling  and  ready  to  yield  up  the  ghost 
for  fear,  answered,  '  Yonder  is  the  place  where  he  lies' ; 
and  showed  him  a  round  table  covered  with  branches  of 
bays,  under  which  Tresilian  lay  close  covered.  When 
they  had  found  him  they  drew  him  out  by  the  heels, 
wondering  to  see  him  wear  his  hair  and  beard  overgrown, 
with  old  clouted  shoes  and  patched  hose,  more  like  a 
miserable  poor  beggar  than  a  judge.  When  this  came  to 
the  ears  of  the  peers,  the  five  appellants  suddenly  rose 
up,  and  going  to  the  gate  of  the  hall,  they  met  the  guard 


io8  REIGN    OF    RICHARD    II.  [1389. 

leading  Tresilian,  bound,  crying,  as  they  came, '  We  have 
him,  we  have  him.'  Tresilian,  being  come  into  the  hall, 
was  asked  '  what  he  could  say  for  himself  why  execution 
should  not  be  done  according  to  the  judgment  passed 
upon  him  for  his  treasons  so  often  committed  ? '  but  he 
became  as  one  struck  dumb,  he  had  nothing  to  say,  and 
his  heart  was  hardened  to  the  very  last,  so  tliat  he  would 
not  confess  himself  guilty  of  any  thing.  Whereupon  he 
was  without  delay  led  to  the  Tower  ;  that  he  might  suffer 
the  sentence  passed  against  him  :  his  wife  and  children 
did  with  many  tears  accompany  him  to  the  Tower ;  but 
his  wife  was  so  overcome  with  grief,  that  she  fell  down  in 
a  swoon  as  if  she  had  been  dead.  Immediately  Tresilian 
is  put  upon  an  hurdle,  and  drawn  through  the  streets  of 
the  city,  with  a  wonderful  concourse  of  people  following 
him.  At  every  furlong's  end  he  was  suffered  to  stop,  that 
he  might  rest  himself,  and  to  see  if  he  would  confess  or 
acknowledge  any  thing ;  but  what  he  said  to  the  friar, 
his  confessor,  is  not  known.  When  he  came  to  the  place 
of  execution  he  would  not  climb  the  ladder,  until  such 
time  as  being  soundly  beaten  with  bats  and  staves  he  was 
forced  to  go  up ;  and,  when  he  was  up,  he  said,  '  So  long 
as  I  do  wear  any  thing  upon  me,  I  shall  not  die  ;'  where- 
fore the  executioner  stript  him,  and  found  certain  images 
painted  like  to  the  signs  of  the  heavens,  and  the  head  of 
a  devil  painted,  and  the  names  of  many  of  the  devils 
wrote  in  parchment ;  these  being  taken  away  he  was 
hanged  up  naked,  and  after  he  had  hanged  up  some  time, 
that  the  spectators  should  be  sure  he  was  dead,  they 
cut  his  throat,  and  because  the  night  approached  they  let 
him  hang  till  the  next  morning,  and  then  his  wife,  hav- 
ing obtained  a  license  of  the  King,  took  down  his  body, 
and  carried  it  to  the  Gray-Friars,  where  it  was  buried."1 

I  add  an  account  of  this  scene  from  Froissart,  which 
is  still  more  interesting  : — 

"  Understanding  that  the  King's  uncles  and  the  new 
Council  at  England  would  keep  a  secret  parliament  at 
Westminister,  he  (Tresilian)  thought  to  go  and  lie  there 
to  learn  what  should  be  done  ;  and  so  he  came  and 
lodged  at  Westminster  the  same  day  their  Council 
began,  and  lodged  at  an  ale-house  right  over  against  the 
1 1  StTr.  115—118. 


i3s9.J  ROBERT   TRESILIA::.  109 

palace  gate,  and  there  he  was  in  a  chamber  looking  out 
of  a  window  down  into  the  court,  and  there  he  might 
see  them  that  went  in  and  out  to  the  Council,  but  none 
knew  him  because  of  his  apparel.     At  last,  on  a  day, 
a  squire  of  the  Duke  of  Gloucester's  knew  him,  for  he 
had  oftentimes   been  in  his  company  :  and  as  soon  as 
Sir  Robert  Tresilian  saw  him  he  knew  him  well,  and 
withdrew  himself  out  of  the  window.     The  squire  had 
suspicion  thereof,  and  said  to  himself,  '  methinks  I  see 
yonder  Sir  Robert  Tresilian  ;'  and,  to  the  intent  to  know 
the  truth,  he  entered  into  the  lodging,  and  said  to  the 
wife,  '  Dame,  who  is  that  that  is  above  in  the  chamber  ? 
is   he  alone,  or  with   company?'     'Sir,'  quoth  she,  'I 
cannot  show  you,  but  he  has  been  here  a  long  space.' 
Therewith  the  squire  went  up  the  better  to  advise  him. 
and    saluted   him,  and   saw  well   it   was   true  ;  but   he 
feigned  himself,  and  turned  his  tale,  and  said,  'God  save 
you,  good  man,  I  pray  you  be  not  discontented,  for  I 
took  you  for  a  farmer  of  mine  in  Essex,  for  you  are  like 
him.'     '  Sir,'  quoth  he,  '  I  am  of  Kent,  and  a  farmer  of 
Sir  John  of  Hollands,  and  there  be  men  of  the  Bishop 
of  Canterbury's  that  would  do  me  wrong ;  and  I   am 
come  hither  to  complain  to  the  Council.'    '  Well,'  quoth 
the  squire,  '  if  you  come  into  the  palace  I  will  help  to 
make  your  way,  that  you  shall  speak  with  the  Lords  of 
the  Council.'     '  Sir,  I  thank  you,'  quoth  he,  '  and  I  shall 
not  refuse  your  aid.'    Then  the  squire  called  fora  pot  of 
ale,  and  drank  with  him,  and  paid  for  it,  and  bade  him 
farewell,  and  departed  ;  and  never  ceased  till  he  came  to 
the  Council  Chamber  door,  and  called  the  usher  to  open 
the  door.     Then  the  usher  demanded  what  he  would, 
because  the  Lords  were  in  Council ;  he  answered  and 
said,  '  I  would  speak  with  my  lord  and  master  the  Duke 
of  Gloucester,  for  a  matter  that  right  near  toucheth  him 
and  all  the  Council.'     Then  the  usher  let  him   in,  and 
when  he  came  before  his  master  he  said,  'Sir,  I  have 
brought  you  great  tidings.'     '  What  be  they?'  quoth  the 
Duke.     '  Sir,'  quoth  the  squire,  '  I  will  speak  aloud,  for  it 
toucheth  you  and  all   my  lords  here  present.      I  have 
seen  Sir  Robert  Tresilian  disguised  in  a  villain's  habit,  in 
an  ale-house  here  without  the  gate.'     '  Tresilian  ?'  quoth 
the  Duke.      '  Yea,  truly,  sir,'  quoth    the    squire,    '  you 


no  REIGN    OF    RICHARD    II.  [1389. 

shall  have  him  ere  you  go  to  dinner,  if  you  please.'  '  I 
am  content,'  quoth  the  Duke,  '  and  he  shall  show 
us  some  news  of  his  master  the  Duke  of  Ireland  ;  go  thy 
way  and  fetch  him,  but  look  that  thou  be  strong  enough 
so  to  do  that  thou  fail  not.'  The  squire  went  forth  and 
took  four  Serjeants  with  him,  and  said,  '  Sirs,  follow  me 
afar  off;  and  as  soon  as  I  make  to  you  a  sign,  and  that  I 
lay  my  hand  on  a  man  that  I  go  for,  take  him  and  let 
him  not  escape.'  Therewith  the  squire  entered  into  the 
house  where  Tresilian  was,  and  went  up  into  the  cham- 
ber ;  and  as  soon  as  he  saw  him,  he  said,  '  Tresilian,  you 
are  come  into  this  country  on  no  goodness ;  my  lord, 
the  Duke  of  Gloucester,  commandeth  that  you  come 
and  speak  with  him.'  The  knight  would  have  excused 
himself,  and  said,  '  I  am  not  Tresilian,  I  am  a  farmer  of 
Sir  John  of  Hollands.'  '  Nay,  nay,'  quoth  the  squire, 
'  your  body  is  Tresilian,  but  your  habit  is  not ;'  and 
therewith  he  made  tokens  to  the  Serjeants  that  they 
should  take  him.  Then  they  went  up  into  the  chamber 
and  took  him,  and  so  brought  him  to  the  palace.  Of 
his  taking,  the  Duke  of  Gloucester  was  right  joyful,  and 
would  see  him,  and  when  he  was  in  his  presence  the 
Duke  said, '  Tresilian,  what  thing  makes  you  here  in  this 
country?  where  is  the  King?  where  left  you  him?'  Tre- 
silian, when  he  saw  that  he  was  so  well  known,  and  that 
none  excusation  could  avail  him,  said,  '  Sir,  the  King 
sent  me  hither  to  learn  tidings,  and  he  is  at  Bristol,  and 
hunteth  along  the  river  Severn.'  '  What,'  quoth  the 
Duke,  '  you  are  not  come  like  a  wise  man,  but  rather 
like  a  spy;  if  you  would  have  come  to  have  learnt 
tidings,  you  should  have  come  in  the  state  of  a  knight.' 
'  Sir,'  quoth  Tresilian, '  if  I  have  trespassed,  I  ask  pardon, 
for  I  was  caused  this  to  do.'  '  Well,  sir,'  quoth  the 
Duke,  '  and  where  is  your  master  the  Duke  of  Ireland  ?' 
'  Sir,'  quoth  he,  '  of  a  truth  he  is  with  the  King.'  '  It  is 
showed  us  here.'  quoth  the  Duke,  '  that  he  assembled 
much  people,  and  the  King  for  him  ;  whither  will  he 
lead  that  people  ?'  '  Sir,'  quoth  he,  '  it  is  to  go  into  Ire- 
land.' '  Into  Ireland  !'  quoth  the  Duke  of  Gloucester. 
'  Yea,  sir,  truly,'  quoth  Tresilian  :  and  then  the  Duke 
studied  a  little,  and  said,  '  Ah,  Tresilian,  Tresilian !  your 
business  is  neither  fair  nor  good  ;  you  have  done  great 


1389.]  ROBERT    BELKNAPPE.  in 

folly  to  come  into  this  country,  for  you  are  not  beloved 
here,  and  that  shall  well  be  seen  ;  you,  and  such  other 
of  your  affinity,  have  done  great  displeasure  to  my 
brother  and  me,  and  you  have  troubled  to  your  power, 
and  with  your  counsel,  the  King,  and  divers  others, 
nobles  of  the  realm ;  also  you  have  moved  certain  good 
towns  against  us.  Now  is  the  day  come  that  you  shall 
have  your  payment ;  for  he  that  doth  well,  by  reason 
shall  find  it.  Think  on  your  business,  for  I  will  neither 
eat  nor  drink  till  you  be  dead.'  That  word  greatly 
abashed  Tresilian  ;  he  would  fain  have  excused  himself 
with  fair  language,  in  lowly  humbling  himself,  but  he 
could  do  nothing  to  appease  the  Duke.  So  Sir  Robert 
Tresilian  was  delivered  to  the  hangman,  and  so  led  out 
of  Westminster,  and  there  beheaded,  and  after  hanged 
on  a  gibbet."1 

Considering  the  violence  of  the  times,  Tresilian's  con- 
viction and  execution  cannot  be  regarded  as  raising  a 
strong  presumption  against  him  :  but  there  seems  little 
doubt  that  he  flattered  the  vices  of  the  unhappy 
Richard  ;  and  historians  agree,  that,  in  prosecuting  his 
personal  aggrandizement,  he  was  utterly  regardless  of 
law  and  liberty.2  He  died  unpitied,  and,  notwithstand- 
ing the  "  historical  doubts  "  by  which  we  are  beset,  no 
one  as  yet  has  appeared  to  vindicate  his  memory. 

He  left  behind  him  an  only  child,  a  daughter,  who  was 
married  into  the  respectable  family  of  Howley,  from 
whom  descended  the  late  venerable  Archbishop  of  Can- 
terbury.3 

I  must  now  give  some  account  of  his  contemporary, 
SIR  ROBERT  BELKNAPPE,  Chief  Justice  of  the  Common 

1  Frois.  part  2.  fol.  no. 

*  Thus  Guthrie  says  (A.  D.  1384),  "  Richard  was  encouraged  in  his  jealousy 
of  the  Duke  of  Lancaster  both  by  the  clergy  about  his  person,  and  Tresilian, 
his  infamous  Chief  Justiciary,  who  undertook,  if  the  King  should  cause  the 
Duke  to  be  arrested,  to  proceed  against  him  as  a  common  traitor." — Vol.  ii. 
p.  326. 

"  Tresilian  had  no  rule  of  judgment  but  the  occasion  it  was  to  serve,  and 
he  knew  no  occasion  which  he  could  not  render  suitable  to  law.  He  was 
too  ignorant  to  be  serviceable  even  to  the  wretched  politics  of  that  court, 
any  further  than  by  blind  compliance.  Thus,  like  a  dog  chained  up  in 
darkness,  when  unmuzzled  he  was  more  fierce,  and  without  distinction, 
tore  down  all  whom  his  wicked  keepers  turned  into  his  tremendous  haunt." 
— Vol.  ii.  p.  349. 

*  Gentleman's  Magazine,  vol.  Ixiv.  p.  325. 


ii2  REIGN    OF    RICHARD    II.  [1377. 

Pleas,  who,  although  trepanned  into  the  unconstitutional 
and  illegal  act  of  signing  the  answers  which  Tresilian 
had  prepared  at  Nottingham,  with  a  view  to  overturn 
the  party  of  the  Duke  of  Gloucester  and  the  Barons, 
appears  to  have  been  a  respectable  Judge  and  a  worthy 
man. 

The  name  of  his  ancestors  (spelt  Belknape)  is  to  be 
found  in  the  list  of  the  companions  of  William  the 
Conqueror  who  fought  at  Hastings,  preserved  in  Battle 
Abbey.1  The  family  continued  in  possession  of  a  mode- 
rate estate  in  the  county  of  Essex,  without  producing 
any  other  member  who  gained  distinction  till  the  reign 
of  Edward  III.  Robert,  a  younger  son,  was  then  sent 
to  push  his  fortune  in  the  inns  of  court,  and  he  acquired 
such  a  taste  for  the  law,  that  on  the  death  of  his  father 
and  elder  brother,  while  he  was  an  apprentice,  he  resolved 
still  steadily  to  follow  his  profession,  and  to  try  for  its 
honors.  After  some  disappointments  he  was  made  a 
King's  Sergeant  ;*  and  finally  his  ambition  was  fully  grat- 
ified with  the  office  of  Chief  Justice  of  the  Common 
Pleas.  He  gave  high  satisfaction  as  a  Judge,  and,  being 
esteemed  by  all  parties,  it  was  expected  that  on  the  ac- 
cession of  Richard  II.  he  would  have  been  appointed 
Chief  Justice  of  the  King's  Bench ;  but  he  was  passed  over 
through  the  intrigues  of  Tresilian.  He  was  permitted, 
however,  to  retain  "  the  pillow  of  the  Common  Pleas  ;" 
and  with  this  he  was  quite  contented,  for,  devoting  him- 
self to  his  judicial  duties,  he  had  no  desire  to  mix  in  the 
factions  which  then  divided  the  state. 

He  did  not  take  any  part  in  the  struggle  which  ended 

1  Thierry,  Nor.  Con.  ii.  385. 

*  While  King's  Sergeant,  he  seems  to  have  had  a  salary  of  £20  a  year,  in 
respect  of  which  he  was  sometimes  sent  as  a  judge  of  assize,  and  sometimes 
he  pleaded  crown  cases  as  an  advocate  : 

"  Issue  Roll,  44  Edward  III. 

"  Robert  Belknaooe  \-     ^°  ^°'jert  Belknappe,  Oiis  of  the  Justices  to 
"  '  )  hold  the  assizes  in  divers  couniies  in  the  kingdom 
of  England,  and  to  deliver  the  gaols  there,  receiving  yearly  £20  for  his  fee 
in  the  office  aforesaid.     In  money  delivered  to  him  for  half  a  year's  pay- 
ment, £10. 

"  To  the  same  Robert,  one  of  the  King's  Serjeants,  in  money  delivered  to 
him  in  discharge  of  the  £10  payable  to  him  at  Michaelmas  Term  last  past, 
for  the  £20  yearly,  which  the  Lord  the  King  lately  granted  to  the  same 
Robert,  to  be  received  at  the  Exchequer  in  aid  of  his  expenses  in  prosecut- 
ing and  defending  his  business,  ,£10." — Devon's  Jsstte  Rolls,  p.  369.  m.  14. 


1389.]  ROBERT    BELKNAPPE.  113 

in  the  Commission  for  making  fourteen  Barons  viceroys 
over  the  King;  and  he  went  on  very  quietly  and  com- 
fortably till  the  month  of  August,  1387,  when,  returning 
from  the  summer  circuit,  he  was  summoned  in  the 
King's  name  to  attend  a  council  at  Nottingham.  On 
his  arrival  there  he  was  received  by  Lord  Chief  Justice 
Tresilian,  who  at  once  explained  to  him  the  plan  which 
had  been  devised  for  putting  down  the  Duke  of  Ireland 
and  the  Barons ;  and  showed  him  the  questions  to  be 
submitted  to  the  Judges,  with  the  answers  which  they 
were  desired  to  return.  He  saw  that  many  of  these 
answers  were  contrary  to  law,  and,  though  extrajudicial 
opinions  were  given  without  scruple  by  the  Judges  to 
the  Crown  ages  afterwards,  he  was  startled  by  the  danger 
to  which  he  must  expose  himself  by  openly  flying  in  the 
face  of  those  who  were  actually  in  possession  of  supreme 
power.  He  therefore  flatly  refused  to  sign  the  answers, 
and  he  did  not  yield  till  the  Duke  of  Ireland  and  the 
Earl  of  Suffolk  were  called  in  and  threatened  to  put 
him  to  death  if  he  remained  contumacious  any  longer. 
Thereupon  he  did  sign  his  name  under  Tresilian's,  say- 
ing, "  Now  I  want  nothing  but  a  hurdle  and  halter  to 
bring  me  to  that  death  I  deserve.  If  I  had  not  done 
this,  I  should  have  been  killed  by  your  hands ;  and,  now 
I  have  gratified  the  King's  pleasure  and  yours  in  doing 
it,  I  have  well  deserved  to  die  for  betraying  the  nobles 
of  the  land."1 

Belknappe  observed  with  great  dismay  the  King's 
march  to  London,  and  the  ensuing  civil  war  which  ter- 
minated in  favor  of  the  Barons ;  but  he  remained  un- 
molested till  the  3d  day  of  February  following,  when  he 
was  arrested  while  sitting  in  the  Court  of  Common 
Pleas,  and,  along  with  the  other  Judges,  was  committed 
to  the  Tower  of  London.  There  he  lay  till  after  the 
trial  of  Brambre  and  the  apprehension  and  execution 
of  Tresilian. 

1  Another  account  makes  him  say,  "  Now  I  want  nothing  but  a  ship,  or  a 
nimble  horse,  or  a  halter  to  bring  me  to  that  death  I  deserve  "  (3  7yrrell, 
906) ;  and  a  third,  "  Now  here  lacketh  nothing  but  a  rope,  that  I  may 
receive  a  reward  worthy  of  my  desert ;  and  I  know  that  if  I  had  not  done 
this,  I  should  not  have  escaped  your  hands  ;  so  that  for  your  pleasure  and 
the  King's,  I  have  done  it,  and  thereby  deserve  death  at  the  hands  of  the 
Lords."— (3  Holin.  456.) 
I— S. 


U4  REIGN    OF    RICHARD    II.  [1389. 

The  House  of  Commons  then  took  up  the  prosecu- 
tion against  Sir  Robert  Belknappe,  and  the  other  Judges, 
and  impeached  them  before  the  House  of  Lords,  "  for 
putting  their  hands  and  seals  to  the  questions  and 
answers  given  at  Nottingham,  as  aforesaid,  by  the  pro- 
curement of  Sir  Robert  Tresilian,  already  attainted  for 
the  same."  Some  of  them  pretended  that  their  answers 
had  not  been  faithfully  recorded ;  but  Sir  Robert  Bel- 
knappe pleaded  the  force  put  upon  him,  declaring  "  that 
when  urged  to  testify  against  the  Commission,  so  as  to 
make  it  void,  he  had  answered,  that  the  intention  of 
the  Lords,  and  such  as  assisted  in  making  it,  and  the 
statute  confirming  it,  was  to  support  the  honor  and  good 
government  of  the  King  and  kingdom  :  that  he  twice 
parted  from  the  King,  having  refused  to  sign  the 
answers :  that,  being  put  in  fear  of  his  life,  what  he  had 
done  proceeded  not  from  his  will,  but  was  the  effect  of 
the  threats  of  the  Archbishop  of  York,  the  Duke  of 
Ireland,  and  the  Earl  of  Suffolk ;  and  that  he  was  sworn 
and  commanded,  in  the  presence  of  the  King,  upon  pain 
of  death,  to  conceal  this  matter.  He  therefore  prayed 
that,  for  the  love  of  God,  he  might  have  a  gracious  and 
merciful  judgment."  The  Commons  replied,  that  "  the 
Chief  Justice  and  his  brethren,  now  resorting  to  such 
shifts,  were  taken  and  holden  for  sages  in  the  law;  and 
they  must  have  known  that  the  King's  will,  when  he 
consulted  them  at  Nottingham,  was,  that  they  should 
have  answered  the  questions  according  to  law,  and  not, 
as  they  had  done,  contrary  to  law,  with  design,  and  under 
color  of  law,  to  murther  and  destroy  the  Lords  and  loyal 
lieges  who  were  aiding  and  assisting  in  making  the  Com- 
mission and  the  statute  confirming  it,  in  the  last  Parlia- 
ment :  therefore,  they  ought  all  to  be  adjudged,  convicted 
and  attainted  as  traitors." 

The  Lords  Spiritual  withdrew,  as  from  a  case  of  blood  ; 
and  the  Lords  Temporal,  having  deliberated  upon  the 
matter,  pronounced  the  following  sentence  : — "  That  in- 
asmuch as  Sir  Robert  Belknappe  and  his  brethren,  now 
impeached  by  the  Commons,  were  actually  present  in  the 
late  parliament  when  the  said  Commission  and  statute 
received  the  assent  of  the  King  and  the  three  estates  of 
the  realm,  being  contrived,  as  they  knew,  for  the  honor 


1389.]  ROBERT    BELKNAPPE.  115 

of  God,  and  for  the  good  government  of  the  state,  of  the 
King,  and  whole  kingdom ;  and  that  it  was  the  King's 
will  they  should  not  have  answered  otherwise  than  ac- 
cording to  law  ;  yet  they  had  answered  in  manner  and 
with  the  intent  charged  against  them  ;  they  were,  by  the 
Lords  Temporal,  and  by  the  assent  of  the  King,  adjudged 
to  be  drawn  and  hanged  as  traitors,  their  heirs  to  be  dis- 
inherited, and  their  lands  and  tenements,  goods  and 
chattels,  to  be  forfeited  to  the  King." ' 

Richard  himself  sat  on  the  throne  during  the  trial,  and 
was  much  shocked  at  this  proceeding.  But,  to  his  un- 
speakable relief,  as  soon  as  the  sentence  was  prononnced, 
the  Archbishop  of  Canterbury  and  all  the  prelates  re- 
turned, and  prayed  that  "  the  execution,  as  to  the  lives 
of  the  condemned  Judges,  might  be  respited,  and  that 
they  might  obtain  their  lives  of  the  King."  This  pro- 
posal was  well  relished,  both  by  Lords  and  Commons  ;  * 
and,  after  some  consultation,  the  King  ordered  execution 
to  be  stayed,  saying  that  "  he  would  grant  the  condemned 
Judges  their  lives,  but  the  rest  of  the  sentence  was  to  be 
in  full  force,  and  their  bodies  were  to  remain  in  prison 
till  he,  with  the  advice  of  the  Lords,  should  direct  other- 
wise concerning  them."  ' 

A  few  days  afterwards,  while  the  Parliament  was  still 
sitting,  it  was  ordained  that  that  "  they  should  all  be 
sent  into  Ireland,  to  several  castles  and  palaces — there  to 
remain  during  their  lives  ;  each  of  them  with  two  ser- 
vants to  wait  upon  him,  and  having  out  of  their  lands  and 
goods  an  allowance  for  their  sustenance."  Belknappe's 
was  placed  at  the  rather  liberal  sum  of  £40  a  year.* 

1  I  Parl.  Hist.  197 — 221 ;  I  St.  Tr.  89 — 153. 

*  "  The  Parliament  considered  that  the  whole  matter  was  managed  by 
Tresilian,  and  that  the  rest  of  the  Judges  were  surprised,  and  forced  to  give 
their  opinion." — I  Kennet,  263. 

This  Parliament  was  rather  unjustly  called  "  The  Merciless  Parliament." 
— 4  Rapin,  49.  Others  more  justly  called  it  "  The  Wonder-working  Parlia- 
ment."— I  Kennet,  262. 

3  3  Tyrrell,  630,  632. 

4  "  5th  Nov.  an.  13  Ric.  II.     To  Sir  Robert  Belknappe,  knight,  who,  by 
force  of  a  judgment  pronounced  against  him  in  the  King's  last  Parliament 
assembled  at  Westminster,  was  condemned  to  death  ;  and  all  and  singular 
the  manors,  lands,  and  tenements,  goods,  and  chattels  whatsoever,  which  be- 
longed to  the  aforesaid  Robert,  were  seized  into  the  King's  hands,  as  for- 
feited to  the  King,  for  the  reason  aforesaid :  whereupon,  the  said  Lord  the 
King  being  moved  with  mercy  and  piety,  and  wishing  and  being  desirous  of 


n6  REIGN    OF    RICHARD    II.  [1389. 

He  was  accordingly  transported  to  Ireland,  then  con- 
sidered a  penal  colony.  At  first  he  was  stationed  at 
Drogheda,  having  the  liberty  of  walking  about  within 
three  leagues  of  that  town.1  He  was  subsequently  trans- 
ferred to  Dublin  ;  and,  after  he  had  suffered  banishment 
for  nine  years,  he  had  leave  to  return  to  his  own  coun- 
try, and  to  practice  the  law  in  London.2  This  mitigation 
was  at  first  complained  of,  as  being  contrary  to  a  sentence 
pronounced  in  full  parliament — but  it  was  acquiesced  in  ; 
and,  although  the  attainder  never  was  reversed,  King 
Richard,  considering  him  a  martyr,  made  him  a  grant  of 
several  of  his  forfeited  estates. 

He  never  again  appeared  in  public  life,  but  retired  into 
the  country,  and,  reaching  extreme  old  age,  became  fa- 
mous for  his  piety  and  his  liberality  to  the  Church.  By 
a  deed  bearing  date  October  8th,  in  the  second  year  of 
King  Henry  IV.,  he  made  over  a  good  estate  to  the 
Prior  of  St.  Andrew,  in  Rochester,  to  celebrate  mass  in 
the  cathedral  chuch  there  forever,  for  the  soul  of  his  fa- 
ther John,  of  his  mother  Alice,  and  for  the  souls  of  him- 
self and  all  his  heirs.3  He  died  a  few  months  afterwards. 

He  was  married  to  Sibbella,  daughter  and  heiress  of 
John  Dorsett,  of  an  ancient  family  in  Essex.  Holding 
estates  in  her  own  right,  these  were  not  forfeited  by  her 
husband's  attainder ;  and,  bringing  an  action  during  his 
banishment  for  an  injury  done  to  one  of  them,  the  ques- 
tion arose,  whether  she  could  sue  alone,  being  a  married 
woman?  But  it  was  adjudged  that,  her  husband  being 

making  a  competent  provision  for  the  support  of  the  same  Robert,  towards 
whom  he  was  moved  with  pity,  did  remit  and  pardon  the  execution  of  the 
judgment  aforesaid,  at  the  request  of  very  many  of  the  prelates,  great  men 
of  the  estate,  and  other  nobility  of  this  realm,  lately  attending  the  said  par- 
liament ;  and  of  his  especial  grace,  with  the  assent  of  his  council,  of  the  I3th 
day  of  July,  in  the  I2th  year  of  his  reign,  granted  to  the  same  Robert  £40 
yearly,  to  be  received  during  his  life  out  of  the  issues  and  revenues  of  the 
manor  lands  and  tenements  aforesaid,  to  be  paid  by  the  hands  of  the  farmers 
thereof  for  the  time  being,  &c.,  according  to  an  ordinance  of  the  Parliament 
aforesaid.  In  money  paid  to  him  by  the  hands  of  Juliana,  his  wife,  viz.,  by 
assignment  made  to  the  same  Juliana  this  day,  £20,  and  in  money  counted, 
£20  and — £40.  (A  list  of  the  horses,  with  a  description  of  them,  belonging 
to  the  said  Robert,  is  entered  on  this  Roll.)" — Devon's  Issue  Rolls,  240. 

1  "  Drouda  et  infra  prsecinctum  trium  leucarum  circa  dictum  villain." — 
Rymer,  vol.  vii.  591. 

*  3  Tyrrell,  959  ;  I  Kennet,  274. 

1  This  estate  still  belongs  to  the  Dean  and  Chapter  of  Rochester. — See 
Hasted's  Kent.  iii.  474. 


1389.]  WILLIAM    THIRNYNGE.  n7 

disqualified  to  join  as  a  plaintiff,  she  was  entitled  to  the 
privilege  of  suing  as  a  feme  sole  ;  although  Chief  Justice 
Markham  exclaimed, — 

"  Ecce  modo  mirum,  quod  foemina  fert  breve  regis, 
Non  nominando  virum  conjunctum  robore  legis."1 

The  attainder  was  reversed  in  favor  of  Sir  Hamon 
Belknappe,  the  Chief  Justice's  son.  The  male  line  of  the 
family  failed  in  a  few  generations  ;  but  the  Stanhopes, 
the  Cokes,  and  the  Shelleys,  now  flourishing,  are  proud 
of  tracing  their  pedigree  to  the  Chief  Justice,  notwith- 
standing the  ignominious  sentence  passed  upon  him. 

There  is  only  one  other  Chief  Justice  who  flourished 
in  the  reign  of  Richard  II.  of  sufficient  eminence  to  be 
commemorated, — Sir  WILLIAM  THIRNYNGE,  who  pro- 
nounced upon  that  unfortunate  monarch  the  sentence 
of  deposition.  The  family  of  this  great  lawyer  seems  to 
have  been  unknown,  both  before  and  after  his  short  il- 
lustration of  it.  He  was  made  a  Puisne  Judge  of  the 
Common  Pleas  in  the  year  1388,"  at  a  famous  time  for 
promotion  in  Westminster  Hall, — one  Chief  Judge  being 
hanged,  and  all  the  other  Judges  being  cashiered,  at- 
tainted, and  banished.3  He  probably  was  not,  pre- 
viously, of  much  mark  or  likelihood,  but  he  proved  to 
be  one  of  the  most  distinguished  magistrates  who  ever 
sat  on  the  English  bench,  being  not  only  deeply  versed 
in  his  profession,  but  of  spotless  purity  and  perfect  in- 
dependence. On  the  death  of  Sir  Robert  de  Charleton, 
who  had  been  appointed  Chief  Justice  of  the  Common 
Pleas  in  the  room  of  Belknappe,  he  succeeded  to  that 
office,4  which  he  filled  with  high  credit  in  three  reigns. 

1  Lord  Chancellor  Ellesmere,  in  citing  this  decision  in  the  case  of  the 
PASTNATI,  states  that  Sir  Robert  Belknappe  had  been  banished  into  Gascony 
"  relegatus  in  Vasconiam"  and  that  he  continued  there  in  the  reign  bf  Henry 
IV. — whereas,  Ireland  was  the  nlace  of  his  banishment,  and  he  had  been  re- 
called by  Richard  II. —  See  2  S't.  Tr.  559. 

3  nth  April,  Pat.  II  Rich.  II,  p.  2.  m.  21. 

3  The  salary  of  a  puisne  could  not  have  been  very  attractive  to  a  barrister 
in  good  practice,  for  it  was  still  only  40  marks  a  year : — 

"  l6th  Oct.  19  Richard  II.  To  William  Thirnyng,  one  of  the  Justices  of 
the  Common  Bench,  receiving  yearly  40  marks  for  his  fee  in  the  ofHce  afore- 
said. In  money  paid  to  him  by  the  hands  of  William  Vaux,  in  dibdiarge 
of  20  marks  paid  to  him  for  this  his  fee.  By  writ,  &c.,  ^13  6j.  3</."— - 
Devon's  Issue  Rolls,  262. 

4  Pat.  19.  Ric.  II.  p.  I.  m.  i. 


n8  REIGN    OF    RICHARD    II.  [1399. 

There  are  many  of  his  decisions  to  be  found  in  the 
YEAR-BOOKS,  but  they  are  all  respecting  aid-prayers, 
essoins,  and  other  such  subjects,  which  have  long  been 
obsolete ;  and  I  must  confine  myself  to  the  part  he  bore 
in  an  historical  transaction  which  must  ever  be  in- 
teresting to  Englishmen. 

While  we  honor  Lord  Somers  and  the  patriots  who 
took  the  most  active  part  in  the  revolution  of  1688,  by 
which  a  King  was  cashiered,  hereditary  right  was  disre- 
garded, and  a  new  dynasty  was  placed  on  the  throne,  we 
are  apt  to  consider  the  Kings  of  the  house  of  Lancaster 
as  usurpers,  and  those  who  sided  with  them  as  rebels. 
Yet  there  is  great  difficulty  in  justifying  the  deposition 
of  James  II.,  and  condemning  the  deposition  of  Richard 
II.  The  latter  sovereign,  during  a  reign  of  above  twenty 
years,  had  proved  himself  utterly  unfit  to  govern  the 
nation,  and,  after  repeated  attempts  to  control  him,  and 
promises  on  his  part  to  submit  to  constitutional  advice, 
he  was  still  under  the  influence  of  worthless  favorites, 
and  was  guilty  of  continued  acts  of  tyranny  and  oppres- 
sion ;  so  that  the  nation,  which,  with  singular  patience, 
had  often  forgiven  his  misconduct  from  respect  to  the 
memory  of  his  father  and  his  grandfather,  was  now 
almost  unanimously  resolved  to  submit  no  longer  to  his 
rule. 

I  therefore  cannot  blame  Chief  Justice  Thirnynge  for 
attempting  to  rescue  the  country  from  the  state  of  con- 
fusion into  which  it  had  fallen,  and  to  restore  regular 
government  under  a  new  sovereign,  who,  although  he 
was  not  next  in  succession  according  to  the  rules  of 
hereditary  descent,  was  of  the  blood  royal, — who  was  by 
birth  the  nearest  to  the  throne  of  those  who  could  be 
placed  upon  it  in  such  an  exigency,1 — who,  by  his  vigor 
and  his  prudence,  had  shown  capacity  to  govern, — and 
to  whom  all  classes  of  the  community  looked  as  their 
deliverer.  Thirnynge  neither  gained  nor  expected  to 
gain  any  personal  advantage  from  the  change,  and  he 
does  not  appear  to  have  been  actuated  by  any  improper 
motive. 

Henry  of  Bolingbroke  being,  soon  after  his  landing  at 

1  The  Earl  of  March,  the  legitimate  heir  after  Richard  II.,  -vas  then  a 
boy  only  seven  years  old. 


J399-]  WILLTA:,r     THIRNYNGE.  119 

Ravenspurg,  de  facto  master  of  the  kingdom,  writs  were 
issued  in  Richard's  name  for  a  new  parliament  to  meet 
at  Westminster  on  the  3Oth  of  September,  when  it  was 
planned  that  there  should  be  a  formal  transfer  of  the 
crown.  Thirnynge  certainly  lent  himself  to  this  design, 
and  was  the  principal  agent  in  carrying  it  into  effect. 
On  the  day  before  parliament  was  to  assemble,  he  went 
with  several  other  commissioners  to  the  Tower  of  Lon- 
don, where  Richard  was  confined,  to  remind  him  of  a 
promise  he  had  recently  made  at  Bristol  that  he  would 
abdicate,  and  to  obtain  from  him  a  formal  renunciation 
of  his  rights.  According  to  the  account  then  published 
(which  must  be  regarded  with  some  suspicion),  Richard 
spontaneously  and  cheerfully  signed  a  paper,  whereby 
he  absolved  all  his  subjects  from  their  allegiance,  and 
confessed  himself  to  be  "  utterly  insufficient  and  unuse- 
ful  for  rule  and  government."1 

1  Sir  John  Hayward  says,  that  when  Thirnynge  and  his  companions  came 
to  the  Tower,  "  the  unhappy  monarch  was  brought  forth,  appareled  in  his 
royal  robes,  the  diadem  on  his  head,  and  the  sceptre  in  his  hand,  and  was 
placed  among  them  in  a  chair  of  state."  He  adds,  that,  after  a  little  pause, 
the  King  arose  from  his  seat,  and  spoke  to  the  following  effect : — 

"  I  assure  myself  that  some  at  this  present,  and  many  hereafter,  will 
account  my  case  lamentable ;  either  that  I  have  deserved  this  dejection,  if 
it  be  just ;  or  if  it  be  wrongful,  that  I  could  not  avoid  it.  Indeed  I  do  con- 
fess, that  many  times  I  have  showed  myself  both  less  provident  and  less 
painful  for  the  benefit  of  the  commonwealth,  than  I  should,  or  might,  or  in- 
tended to  do  hereafter ;  and  have  in  many  actions  more  respected  the  satis- 
fying of  my  own  particular  humor,  than  either  justice  to  some  private 
persons,  or  the  common  good  of  all ;  yet  I  did  not  at  any  time  either  omit 
duty  or  commit  grievance,  upon  natural  dullness  or  set  malice  ;  but  partly 
by  abuse  of  corrupt  counselors,  partly  by  error  of  my  youthful  judgment. 
And  now  the  remembrance  of  these  oversights  is  so  unpleasant  to  no  man 
as  to  myself ;  and  the  rather  because  I  have  no  means  left,  either  to  recom- 
pense the  injuries  which  I  have  done,  or  to  testify  to  the  world  my  reformed 
affections,  which  experience  and  stayedness  of  years  had  already  corrected, 
and  would  daily  have  framed  to  more  perfection.  But  whether  all  the  im- 
putations wherewith  I  am  charged  be  true,  either  in  substance,  or  in  such 
quality  as  they  are  laid  ;  or  whether,  being  true,  they  be  so  heinous  as  to 
enforce  these  extremities ;  or  whether  any  other  prince,  especially  in  the 
heat  of  youth,  and  in  the  space  of  22  years,  the  time  of  my  unfortunate 
reign,  doth  not  sometimes,  either  for  advantage,  or  upon  displeasure,  in  as 
deep  manner  grieve  some  particular  subject,  I  will  not  now  examine  ;  it 
helpeth  not  to  use  defense,  neither  booteth  it  to  make  complaint ;  there  is 
no  place  left  for  the  one,  nor  pity  for  the  other :  and  therefore  I  refer  it  to 
the  judgment  of  God,  and  your  less  distempered  considerations.  I  accuse 
no  man,  I  blame  no  fortune,  I  complain  of  nothing  ;  I  have  no  pleasure  in 
such  vain  and  needless  comforts  ;  and  if  I  listed  to  have  stood  upon  terms, 
I  know  I  have  great  favorers  abroad ;  and  some  friends,  I  hope,  at  home. 


I2o  REIGN    OF    RICHARD    II.  [1399. 

Next  day,  when  the  Lords  and  Commons  assembled 
in  Westminster  Hall,  the  throne  being  vacant,  and  Bo- 
lingbroke  still  sitting  on  the  left  side  of  it,  occupying 
the  uppermost  place  on  the  Duke's  bench,  this  resigna 
tion  was  produced  and  read.  But,  lest  doubts  should 
afterwards  be  started  respecting  its  validity,  on  the 
ground  that  it  was  executed  under  duress,  Thirnynge 
advised  that  articles  should  be  exhibited,  charging 
Richard  with  misconduct,  whereby  he  had  forfeited  the 
crown,  and  that  sentence  of  deposition  should  be  formally 
passed  upon  him  by  the  states  of  the  realm.  Accord- 
ingly, a  sort  of  indictment  was  produced,  consisting  of 
no  fewer  than  thirty-three  counts,  which  charged  the 
unhappy  Richard  with  many  very  grave  and  some  rather 
frivolous  offenses.  We  do  not  see  how  this  step  mate- 
rially legalized  or  formalized  the  proceeding,  for  he  was 
never  called  upon  to  plead,  and  he  had  no  opportunity 
of  urging  any  defense.  The  Record  that  was  made  up, 
after  setting  forth  the  articles,  thus  proceeds : — 

"  And  because  it  seemed  to  all  the  estates  of  the 
realm,  being  asked  their  judgments  thereupon,  as  well 
severally  as  jointly,  that  these  crimes  and  defaults  were 
sufficient  and  notorious  to  depose  the  said  King,  con- 
sidering also  his  own  confession  of  his  insufficiency,  and 
other  things  contained  in  the  said  renunciation,  the  said 
states  did  unanimously  consent  that,  ex  abundant i,  they 
should  proceeed  to  a  deposition  of  the  said  King." 

Thirnynge  and  several  other  commissioners  were  then 
appointed  to  pronounce  the  deposition,  and  it  was  pro- 
nounced accordingly.  Next  followed  a  form  which  we 
should  think  very  unnecessary  and  valueless,  but  to 
which  great  importance  seems  to  have  been  attached  : — 

"  Furthermore,"  says  the  Record,  "  the  said  states, 
willing  that  nothing  should  be  wanting  which  might  be 

who  would  have  been  ready,  yea,  forward  in  my  behalf,  to  set  up  a  bloody 
and  doubtful  war ;  but  I  esteem  not  my  dignity  at  so  high  a  price,  as  the 
hazard  of  so  great  valor,  the  spilling  of  so  much  English  blood,  and  the 
spoil  and  waste  of  so  flourishing  a  realm,  as  thereby  might  have  been  occa- 
sioned. Therefore,  that  the  commonwealth  may  rather  rise  by  my  fall,  than 
I  stand  by  the  ruin  thereof,  I  willingly  yield  to  your  desires  ;  and  am  here 
come  to  dispossess  myself  of  all  publtc  authority  and  title,  and  to  make  it 
free  and  lawful  for  you  to  create  for  your  king,  Henry,  Duke  of  Lancaster, 
my  cousin  german,  whom  I  know  to  be  as  worthy  to  take  that  place,  as  I 
sec  you  willing  to  give  it  to  him." 


I399-]  WILLIAM    THIRNYNGE.  121 

of  value  or  ought  to  be  required  touching  the  premises, 
being  severally  interrogated  thereupon,  did  constitute 
the  same  persons  that  were  before  nominated  commis- 
sioners to  be  their  procurators,  jointly  and  separately,  to 
resign  and  give  back  to  the  said  King  Richard  the 
homage  and  fealty  to  him  before  made." 

But,  without  waiting  for  this  intimation,  Bolingbroke, 
by  Thirnynge's  advice,  seated  himself  on  the  throne, 
saying  "  In  the  name  of  Fader,  Son,  and  Holy  Ghost,  I, 
Henry  of  Lancaster,  chalenge  this  rewme  of  Ynglonde 
and  the  croun  with  all  the  members  and  appurtenances 
thereto  belonging." 

Although  Henry  now  took  upon  himself  the  full  exer- 
cise of  royalty,  and  forthwith  in  his  own  name  summoned 
the  parliament  to  meet,  still,  to  perfect  his  title,  Thir- 
nynge  and  his  brother  mandatories  went  next  day  to  the 
Tower  to  resign  to  Richard  the  homage  and  fealty  of 
the  nation,  and  drew  up  with  his  own  hand  a  report, 
still  extant,  of  what  then  occurred,  which  is  interesting 
both  to  the  philologist  and  the  historian,  as  it  affords  us 
a  genuine  specimen  of  the  construction  and  orthography 
of  our  language  in  the  fourteenth  century : — 
"  The  Words  which  William  Thirnynge  spake  to  Monsire 
Richard,  late  King  of  England,  at  the  Tower  of  Lon- 
don, in  his  chamber,  on  Wednesday  next  after  the 
feast  of  St.  Michael  the  Archangel,  were  as  follow: — 
"  Sire, — It  is  wele  know  to  zou,1  that  ther  was  a  parle- 
ment  somon'd  of  all  the  states  of  the  reaume  for  to  be 
at  Westmystre,  and  to  begin  on  the  Tuesday  in  the 
morn  of  the  fest  of  St.  Michel  the  Archangel,  that  was 
zesterday ;  by  cause  of  the  which  summons  all  the  states 
of  this  lond  were  there  gadyr'd,  the  which  states  hole 
made  thes  same  persones  that  ben  comen  here  to  zowe 
now,  her  procurators,  and  gaven  hem  full  autorite  and 
power,  and  charged  hem  for  to  say  the  words  that  we 
shall  say  to  zowe  in  their  name,  and  on  their  behalve  ;  that 
is  to  wytten,  the  Bishop  of  Seint  Assa  for  ersbishoppes  and 
bishoppes,  the  Abbot  of  Glastenbury  for  abbots  and 
priours,  and  all  other  men  of  holy  chirche,  seculers  and 
rewelers,  the  Earle  of  Gloucestre  for  dukes  and  erles,  the 

1  It  is  curious  that  the  letter  z  then  in  England,  as  long  afterwards  in 
Scotland,  stood  for  the  sound  now  denoted  by_j'. 


122  REIGN  OF  RICHARD  II.  [1399. 

Lord  of  Berkeley  for  barons  and  banerettes,  Sir  Thomas 
Irpyngham,  chamberleyn,  for  all  the  bachilers  and  com- 
mons of  this  lond  be  south  ;  Sir  Thomas  Grey  for  all  the 
bachilers  and  commons  by  north,  and  my  felawe  John 
Markham  and  me  for  to  come  with  hem  for  all  thes 
states.  And  so,  sire,  these  words,  and  the  doing  that  we 
shall  say  to  zowe,  is  not  onlych  our  wordes  but  the 
doyngs  of  all  the  states  of  this  lond,  and  our  charge  in 
her  name. — And  he  answered  and  said,  that  he  wyste 
wele  that  we  would  noght  say  but  as  we  were  charged.— 
Sire,  ze  remembre  zowe  wele  that  on  Moneday,  in  the 
fest  of  Seint  Michel  the  Archaungel,  ryght  here  in  this 
chamber,  and  in  what  presence  ze  renounced  and  cessed 
of  the  state  of  kynge  and  of  lordeship,  and  of  all  the 
dignite  and  wyrship  that  longed  thereto,  and  assoiled  all 
zour  leiges  of  her  leigance  and  obeisance  that  longed  to 
zowe  uppe  the  fourme  that  is  contened  in  the  same  re- 
nunciation and  cession,  which  ze  redde  zour  self  by  zour 
mouth,  and  affermed  it  by  zour  othe,  and  by  zour  owne 
writing.  Upon  which  ze  made  and  ordeined  your  pro- 
curators the  Ersbishop  of  Zork  and  the  Bishop  of  Here- 
ford for  to  notifie  and  declare  in  zour  name  thes  renun- 
ciation and  cession  at  Westmynstre  to  all  the  states,  and 
all  the  people  that  was  there  gadyr'd,  bycause  of  the 
summons  aforesaid,  the  which  thus  don  yesterday  by 
thes  lords  zour  procuratours,  and  wele  herde  and  under- 
stouden,  thes  renunciation  and  cession  were  plenelich 
and  frelich  accepted,  and  fullich  agreed  by  all  the  states 
and  people  aforesaid.  And  over  this,  sire,  at  the  in- 
stance of  all  thes  states  and  people,  there  were  certain 
articles  of  defautes  in  zour  governance  zedde  there,  and 
tho  wele  herd  and  pleinelich  understouden  to  all  the 
states  aforesaid,  hem  thoght  hem  so  trewe,  and  so 
notorie,  and  knowen,  that  by  tho  causes  and  by  no  other, 
as  thei  sayd,  and  havyng  consideration  to  zour  own 
wordes  in  zour  own  renunciation  and  cession,  that  ze 
were  not  worthy,  no  sufficient  ne  able  for  to  governe,  for 
zour  own  demerites,  as  it  is  more  pleinelich  contened 
therein  ;  hem  thoght  that  was  reasonable  and  cause  for 
to  depose  zowe,  and  her  commissaries  that  they  made 
and  ordein'd,  os  it  is  of  record,  ther  declared  and  de- 
creed, and  adjudged  zow  for  to  be  deposed,  and  pryved 


1 399-]  WILLIAM    THIRNYNGE.  123 

zowe  of  the  astate  of  king,  and  of  the  lordeship  con- 
teined  in  the  renunciation  and  cession  forsayd,  and  of  all 
the  dignite  and  wyrshippe,  and  of  all  the  administration 
that  longed  thereto.  And  we  procurators  to  all  thes 
states  and  people  forsayd  os  we  be  charged  by  hem,  and 
by  her  autorite  gyffen  us,  and  in  her  name  zelde  zow 
uppe  for  all  the  states  and  people  forsayd,  homage,  leige, 
and  feaute,  and  all  leigeance,  and  all  other  bondes, 
charge,  and  services  thar  long  thereto,  and  that  non  of 
all  thes  states  and  people  fro  thys  tyme  forward  ne  bere 
zowe  feyth,  ne  do  zowe  obeisance  os  to  that  king. — And 
he  answered  and  seyd,  that  he  loked  not  ther  after,  but 
he  seyd,  that  after  all  this  he  hoped  that  is  cosyn  wolde 
be  gude  lord  to  hym." 

When  Parliament  again  met  on  the  6th  of  October, 
under  new  writs  from  the  Duke  of  Lancaster,  without 
any  change  in  the  members,1  Thirnynge  gave  an  account 
of  the  manner  in  which  he  had  executed  his  duty  in  sur- 
rendering the  allegiance  of  the  nation  to  the  discrowned 
King ;  and,  then  the  oaths  being  taken  to  Henry  IV.,  the 
march  of  the  government  proceeded  as  if  the  heir  appa- 
rent had  been  proclaimed  on  the  demise  of  his  father. 

Thirnynge  received  a  new  patent  as  Chief  Justice  of 
the  Common  Pleas,  and  continued  to  fill  this  office  dur- 
ing the  whole  of  this  reign,  without  any  increase  to  his 
dignity,  but  with  ever-growing  respect  from  the  public. 
He  did  not  again  mix  in  politics,  even  so  much  as  Sir 
Wm.  Gascoigne,  who  became  Chief  Justice  of  the  King's 
Bench.  During  the  insurrections  of  the  Percys  and  Owen 
Glendower,  he  quietly  continued  administering  justice  at 
Westminster ;  and  the  only  battles  he  witnessed  were  a 
few  in  Tothill  Fields,  between  champions  on  trials  of 
writs  of  right,  when  he  had  his  brethren,  attired  in  their 
scarlet  robes,  attended  to  see  that  the  laws  of  the  ring 
were  observed,  and  to  award  the  fruits  of  victory  to  the 
successful  side.  He  was  summoned  to  every  parliament ; 
but  he  merely  gave  his  opinion  on  Juridical  questions, 
when  consulted,  for  the  guidance  of  the  House  of  Lords. 

1  Afterwards  the  contrivance  resorted  to  when  a  meeting  of  the  states  was 
wanted  and  could  not  be  summoned  by  the  King,  whose  authority  was  to  be 
recognized,  was  to  call  the  meeting  a  CONVENTION — and  then,  a  King  being 
put  on  the  throne,  to  turn  it  into  a  Parliament,  by  an  act  passed  by  his  au 
thority.  and  that  of  the  two  Houses ;  as  in  1660  and  i68q. 


124  REIGN  OF  HENRY  IV.  [1413. 

Although  he  was  sworn  a  privy  councillor,  the  King 
being  his  own  minister,  this  was  little  more  than  an 
honorary  distinction  to  him. 

Thirnynge,  on  the  death  of  Henry  IV.,  had  the  satis- 
faction to  see  his  son's  title  universally  acknowledged, 
and  the  Lancastrian  line  seemed  for  ever  established  on 
the  throne.  It  was  expected  that  this  venerable  magis- 
trate would  now  be  displaced  to  make  way  for  some  one 
recommended  by  the  profligate  companions  of  the  new 
King  when  Prince  of  Wales ;  but  he  was  continued  in 
his  office,  with  high  compliments  to  his  ability  and  integ- 
rity,1 and  he  was  again  sworn  of  the  Privy  Council,  along 
with  other  faithful  servants  of  the  late  King,  who  were 
thanked  for  having  tried  to  repress  the  excesses  of  the 
heir  apparent.  Within  a  year  he  was  attacked  by  a  dis- 
ease which  compelled  him  to  resign,  and  he  expired  long 
before  the  commencement  of  the  fatal  War  of  the  Roses. 
Had  this  been  foreseen,  it  would  probably  have  induced 
him  to  advise  his  countrymen  rather  to  submit  to  the 
capricious  tyranny  of  Richard,  than  to  encounter  the 
danger  of  a  disputed  succession,  which  was  for  many 
years  to  deluge  the  kingdom  with  blood. 

I  believe  it  was  long  since  there  were  any  Thirnynges 
in  any  part  of  England  ;  and  we  have  an  instance  of  a 
name  being  utterly  extinguished — while  other  families 
have  multiplied  so  as  to  form  a  crowded  population  in 
extensive  districts,  and,  by  migrations,  are  found  in  the 
remotest  parts  of  the  kingdom.2 

The  great  contemporary  Judge  who  gave  lustre  to  the 
reign  of  Henry  IV.,  was  SIR  WILLIAM  GASCOIGNE3 — fa- 
miliar to  us  from  the  anecdote  of  his  having  committed 
the  Prince  of  Wales  to  prison,  and  from  being  a  conspic- 

!  Pat.  I  Hen.  v.  p.  i.  m.  36. 

*  Of  course  I  do  not  refer  to  names  taken  from  trades,  such  as  Smith,  nor 
to  patronymics,  such  as  Johnson,  which  may  have  been  assumed  and  borne 
by  difterent  families,  wholly  unconnected  with  blood. 

3  I  have  preferred  the  most  modern  spelling  of  this  name,  but  it  is  found 
spelt  in  more  than  twenty  other  different  manners — Gaskin,  Gauscin,  Gas- 
coynge,  Gascoigne,  Gascoyn,  Gascun,  Gasken,  Gaskyn,  Gaskun,  Gaston,  Gas- 
tone,  Gastoyn,  Gastoynge,  Gasquin,  Gasquyne,  Gawsken,  Vascon,  Guascoyn, 
Gaskoigne,  and  De  Gasquone.  For  Christian  name,  "  William"  was  the 
great  patronymic  in  the  family,  perhaps  in  compliment  to  the  Conqueror ; 
and  in  their  pedigree  are  counted  16  Williams  lineally  succeeding  each  other 
— seven  before,  and  eight  after,  the  Chief  Justice, 


1398.]  WILLIAM    GASCOIGNE.  125 

uous  character  in  one  of  the  most  popular  of  the  dramas 
of  Shakspeare. 

He  was  born  about  the  middle  of  the  reign  of  Edward 
III.,  at  Gawthorp,  in  the  county  of  York,  where  his  fam- 
ily— of  Norman  extraction — had  been  seated  for  sever- 
al centuries.  Instead  of  being  distinguished,  like  his  an- 
cestors, for  military  prowess,  his  ambition  was  to  be  a 
profound  lawyer  and  a  great  judge.  While  yet  a  boy,  he 
was  sent  to  the  University  of  Cambridge,  where  he  was 
initiated  in  grammar  and  philosophy ;  and,  after  a  few 
years'  residence  there,  he  was  transferred  to  the  Inns  of 
Court.  Two  of  these  (although  their  written  records  do 
not  extend  so  far  back)  contend  for  the  honor  of  having 
had  him  as  a  member.  The  Middle  Temple  men  assert 
that,  according  to  certain  traditions,  he  belonged  to 
them  ;  while  the  Gray's  Inn  men  rely  upon  the  fact  that 
his  arms  are  to  be  found  in  a  window  in  their  hall,  among 
those  of  the  dignitaries  of  their  society.  He  certainly 
devoted  himself  to  the  study  of  the  common  law  with  ex- 
traordinary zeal  and  perseverance.  After  a  seven  years' 
course,  and  many  examinations  and  disputations  to  test 
his  proficiency,  he  was  admitted  to  practice  as  an  "utter 
barrister."  From  his  learning  and  assiduity  he  was  soon 
in  considerable  business  ;  and  among  his  clients  was  John 
of  Gaunt,  to  whom  he  rendered  valuable  assistance  in 
managing  the  concerns  of  the  Duchy  of  Lancaster. 

When  Henry  of  Bolingbroke  and  the  Duke  of  Norfolk, 
being  about  to  engage  in  single  combat  in  the  lists  of 
Coventry,  were  banished  from  the  kingdom,  Richard  II. 
gave  each  of  them  power  to  name  an  attorney,  or  agent, 
who  might  claim  and  sue  for  an  inheritance  that  should 
fall  to  them  in  their  absence.  Gascoigne  was  named  at- 
torney for  the  former  on  the  suggestion  of  the  "  time- 
honored  Lancaster,"  who  saw  himself  near  the  end  of  his 
long  career,  and  was  anxious  that  the  best  measures 
should  be  taken  to  secure  his  vast  possessions  for  his  ex- 
iled son.  Richard,  pretending  to  be  very  friendly  to  his 
uncle  and  his  cousin,  confirmed  the  nomination  ;  and,  out 
of  compliment  to  them,  appointed  Gascoigne  King's 
Serjeant,  which  placed  him  at  the  head  of  the  Bar.1 

On  the  death  of  John  of  Gaunt,  in  the  beginning  of 

1  Dugd.  Chr.  Ser. 


iz6  REIGN    OF    HENRY    IV.  [1399. 

the  following  year,  Gascoigne,  as  the  attorney  of  his  son, 
the  Duke  of  Hereford,  now  Duke  of  Lancaster,  sued  in 
the  Court  of  Wards  and  Liveries,  that  seizin  might  be 
given  to  him  of  the  Duchy  and  County  Palatine  of  Lan- 
caster and  his  other  lands  held  of  the  Crown  ;  offering  to 
do  homage,  and  swear  allegiance,  in  the  name  of  the  ab- 
sent heir ;  but  Richard,  being  again  in  the  hands  of 
worthless  favorites  who  wished  to  divide  these  spoils 
among  themselves,  declared  a  resolution  to  retain  them 
in  his  own  hands,  at  least  till  the  ten  years  had  expired 
for  which  the  sentence  of  banishment  had  been  pro- 
nounced. Gascoigne  presented  a  respectful  memorial, 
reminding  the  King  how  his  appointment  as  attorney  for 
Hereford  had  been  confirmed  under  the  broad  seal ;  and 
prevailed  on  the  Duke  of  York  to  remonstrate,  in  a  speech 
of  which  the  following  is  probably  a  pretty  accurate  re- 
port : — 

"  Take  Hereford's  rights  away,  and  take  from  time 
His  charters,  and  his  customary  rights. 

how  art  thou  a  king, 

But  by  fair  sequence  and  succession  ? 

Now,  afore  God  (God  forbid,  I  say  true  !) 

If  you  do  wrongfully  seize  Hereford's  rights, 

Call  in  the  letters  patent  that  he  hath 

By  his  attornies-general  to  sue 

His  liver}',  and  deny  his  ofTer'd  homage, 

You  pluck  a  thousand  dangers  on  your  head, 

You  lose  a  thousand  well-disposed  hearts, 

And  prick  my  tender  patience  to  those  thoughts 

Which  honor  and  allegiance  cannot  think." 

However,  the  fatal  answer  was  given, — 

"  Think  what  you  will ;  we  seize  into  our  hands 
His  plate,  his  goods,  his  money,  and  his  lands."1 

Accordingly,  a  supersedeas  was  passed  under  the  Great 
Seal,  revoking  Gascoigne's  authority  to  sue  as  attorney 
for  the  banished  Duke ;  pnd  the  whole  of  his  property, 
real  and  personal,  was  taken  possession  of  as  forfeited  to 
the  Crown.* 

1  Shaks.  Rich.  II.  act  ii.  sc.  I. 

*  The  revocation  of  Gascoigne's  authority  to  represent  Henry,  was  made 
one  of  the  charges  against  Richard,  for  which  sentence  of  deposition  was 
pronounced  against  him.  "Art.  12. — After  the  said  King  had  graciously 
granted  his  letters  patent  to  the  Lord  Henry,  now  Duke  of  Lancaster,  that 
in  his  absence,  while  he  was  banished,  his  general  attornics  might  prosecute 
for  livery  to  him,  to  be  made  of  all  manner  of  inheritance  or  succession 


i4oo.J  WILLIAM    GASCOIGNE.  177 

Gascoigne  sent  intelligence  of  this  outrage  to  the  youg 
Duke  of  Lancaster,  who,  as  soon  as  he  had  made  the  ne- 
cessary preparations,  landed  at  Ravenspurg  ;  at  first  only 
claiming  his  rights  as  a  subject,  but  soon  openly  aiming 
at  the  Crown. 

During  the  struggle,  Gascoigne  did  not  join  Henry  in 
the  field,  but,  remaining  in  London,  advised  measures  for 
aiding  his  cause  ;  and,  when  the  nation  had  declared  for 
him,  he  acted  in  concert  with  Chief  Justice  Thirnynge  in 
smoothing  his  way  to  royalty. 

Henry  IV.  being  proclaimed  King,  one  of  the  first  acts 
of  his  reign  was  to  appoint  Gascoigne  Chief  Justice  of 
the  Court  of  King's  Bench,  and  to  confer  upon  him  the 
honor  of  knighthood.1 

Never  was  the  seat  of  judgment  filled  by  a  more  up- 
right or  independent  magistrate.  He  was  likewise  cele- 
brated for  the  soundness  of  his  decisions.  The  early 
ABRIDGMENTS  swarm  with  them  ;*  but  it  is  only  to  an 
antiquarian  lawyer  that  they  now  possess  any  interest. 
Traits  of  disinterestedness,  fortitude,  and  magnanimity, 
showing  an  enlightened  sense  of  what  is  fit,  and  a  deter- 
mination, at  every  risk  and  every  sacrifice,  to  do  what 
duty  requires,  please  and  edify  all  future  generations. 
Therefore,  although  the  ashes  of  Sir  William  Gascoigne 
have  reposed  upwards  of  four  centuries  beneath  the  mar- 
ble which  protects  them,  and  although  since  his  time 
there  has  been  a  complete  change  of  laws  and  manners 
— when  we  see  him  despise  the  frown  of  power,  our  sym- 

belonging  to  him,  and  that  his  homage  should  be  respited  paying  a 
certain  reasonable  fine — he  injuriously  did  revoke  the  said  letters  patent, 
against  the  laws  of  the  land,  thereby  incurring  the  crime  of  perjury." — I  St. 
Tr.  143. 

1  See  Dug.  Chr.  Ser. — The  exact  date  of  Gascoigne's  appointment  to  this 
office  has  not  been  ascertained  ;  and  some  have  deferred  it  for  a  year  or  two, 
chiefly  on  the  ground  that  in  the  first  parliament  of  Henry  IV.,  the  confes- 
sion of  John  Hall,  concerned  in  the  murder  of  Thomas,  Duke  of  Gloucester, 
by  smothering  him  between  two  feather-beds  at  Calais,  was  taken  by  Sir 
Walter  Clopton,  who  had  been  Chief  Justice  of  the  King's  Bench,  in  the 
reign  of  Richard  II.,  and  that  the  same  Sir  Walter  Clopton  was  summoned 
to  parliament  the  following  year.  But  all  this  is  consistent  with  his  having 
been  removed  to  an  inferior  judicial  office ;  and  Sir  William  Gascoigne's 
opinions  as  Chief  Justice,  are  to  be  found  in  the  Year-Books  from  the  very 
commencement  of  Henry  s  reign. 

*  See  references  to  them  in  Gascoigne's  Year-Book.  part  vi.,  reign  of  Hen. 
IV.  and  Life  in  the  Biographia  Britannica. 


128  REIGN   OF  HENRY  IV.  [1405. 

pathies  are  as  warmly  excited  as  by  the  contemplation 
of  a  Holt  or  a  Camden. 

The  first  recorded  instance  of  an  independent  spirit 
being  displayed  by  him,  to  the  wonder  of  his  con- 
temporaries, was  when  he  attended  Henry  IV.  to  the 
north,  to  assist  in  putting  down  an  insurrection,  planned 
by  Scrope  the  Archbishop  of  York,  and  Thomas  Mow- 
bray,  son  of  the  banished  Duke  of  Norfolk  who  had  died 
abroad.1  The  King,  having  made  these  two  rebels 
prisoners,  directed  Gascoigne,  as  Chief  Justice  of  Eng- 
land, immediately  to  sit  in  judgment  upon  them,  and, 
by  his  own  authority,  to  sentence  them  to  death.  But, 
notwithstanding  repeated  solicitations,  he  peremptorily 
refused,  saying,  "  Much  am  I  beholden  to  your  High- 
ness, and  all  your  lawful  commands  I  am  bound  by  my 
allegiance  to  obey ;  but  over  the  life  of  the  prelate  I 
have  not,  and  your  Highness  cannot  give  me,  any  juris- 
diction. For  the  other  prisoner,  he  is  a  peer  of  the 
realm,  and  has  a  right  to  be  tried  by  his  peers."  A 
more  obsequious  agent  was  found  in  Sir  William  Ful- 
thorpe,  a  worthless  Puisne  Judge,  who,  in  the  hope  of 
seeing  Gascoigne  disgraced,  and  of  succeeding  to  the 
offke  of  Chief  Justice,  having  placed  himself  on  a  high 
throne  in  the  Archbishop's  palace,  called  both  the  pris- 
oners before  him,  and,  without  indictment,  or  form  of 
trial,  condemned  them  both  to  be  beheaded.  The  sen- 
tence was  immediately  carried  into  execution.*  When 
the  Parliament  was  afterwards  called  upon  to  ratify  this 
proceeding,  the  Lords  said  it  demanded  inquiry  and  de- 
liberation ;  and  the  matter  was  thus  laid  at  rest  forever.* 
It  is  pleasing  to  reflect  that  Fulthorpe  was  disappointed 

1  It  is  a  curious  fact  that  the  military  functions  of  the  Grand  Justiciar, 
although  no>  longer  belonging  to  the  Chief  Justice  of  the  King's  Bench, 
virtute  ojficii,  were  sometimes  specially  assigned  to  him.  Thus,  in  the  re- 
bellion of  the  Percys,  two  years  before,  Chief  Justice  Gascoigne  had  been 
sent  to  quell  it,  fortified  with  a  commission  of  array,  which  empowered  him 
to  raise  forces  in  the  northern  counties.  The  authority  to  press  into  the 
service,  extends  to  "  persons  of  what  state,  degree,  or  condition  what 
soever." — Rym.  Feed.  vol.  viii.  319. 

*  Rymer's  Feed.  vol.  viii.  319. 

*  A  leprous  disease,  which  soon  after  attacked  the  King,  was  supposed  to 
be  a  visitation  of  Heaven  upon  him  for  the  violent  death  of  the  Archbishop  ; 
while  Judge  Gascoigne  received  many  blessings  for  refusing  to  be  concerned 
in  this  sacrilege. — Stow's  Annals,  fol.  333  ;   Mayd.  Hist.  Marty. :    Richard 
Scrope,  Ang.  Sac.  vol.  ii.  370. 


i4io.]  WILLIAM    GASCOIGNE.  129 

in  his  hope  of  promotion,  and  that  the  virtuous  Chief 
Justice  continued  to  hold  his  office  with  increased  repu- 
tation.1 

Still  enjoying  the  confidence  of  the  King,  Gascoigne 
was  employed  by  him  "to  treat  and  compound  with, 
and  offer  clemency  to,  the  adherents  of  the  Earl  of 
Northumberland ;  likewise  to  receive  their  fines,  and 
pay  them  into  the  Exchequer."*  At  last,  all  the  at- 
tempts of  the  discontented  Barons  were  effectually  de- 
feated, and  Henry's  throne  was  as  firmly  established  as 
if  it  had  been  based  on  hereditary  right. 

His  chief  anxiety  now  arose  from  the  irregularities  of 
his  son,  the  Prince  of  Wales,  who,  having  distinguished 
himself  by  military  skill  and  bravery  in  the  early  part  of 
the  reign,  had  subsequently  abandoned  himself  to  dissi- 
pation, and  had  consorted  not  only  with  buffoons,  but 
with  persons  accustomed  to  minister  to  their  profligate 
expenses  by  forced  contributions  from  travelers  on  the 
highways. 

These  excesses  led  to  an  event  which  drew  great 
applause  upon  the  Prince  himself,  on  the  King,  and  still 
more  on  Lord  Chief  Justice  Gascoigne.  But  I  must  be- 
gin by  showing  that  this  is  not  a  poetical  fiction.  For- 
merly, every  thing  recorded  by  historians  was  believed  ; 
now,  every  thing  is  denied  or  doubted ;  and  the  fact  of 
the  commitment  of  the  Prince  of  Wales,  afterwards 
Henry  V.,  to  the  King's  Bench  prison,  long  considered 
as  authentic  as  his  victory  at  Agincourt,  has  lately  been 
referred  to  the  same  class  of  narrative  as  the  landing  of 
King  Brute  after  the  siege  of  Troy,  or  the  exploits  of 
King  Arthur  and  the  knights  of  the  Round  Table.' 

The  only  ground  on  which  this  scepticism  rests  is, 
that  the  story  cannot  be  pointed  out  in  any  written 
composition  given  to  the  world  till  rather  more  than 
a  century  after  Sir  William  Gascoigne's  death.  The  ob- 
jection would  have  been  very  strong  if  in  his  lifetime 
there  had  been  newspapers,  magazines,  annual  registers, 
and  memoirs,  detailing  all  the  proceedings  of  courts  of 
justice,  and  all  the  occurrences  of  political  and  private 

1  Rot.  Parl.  iii.  606,  viii.  605  ;  Wals.  373  ;  Hall,  ii.  310. 

*  Rymer's  Feed.  vol.  viii.  530. 

*  See  Tyler's  Life  of  Henry  V.,  vol.  i.  c.  16. 


130  REIGN    OF    HENRY    IV.  [1412 

life,  which  can  be  interesting  to  any  class  of  readers. 
Even  in  that  case,  a  little  consideration  should  be  had 
of  the  probable  unwillingness  to  proclaim  to  all  mankind 
anecdotes  discreditable  to  the  heir  apparent ;  and  cer- 
tainly several  respecting  George  IV.  when  Prince  of 
Wales,  which  have  not  as  yet  appeared  in  print,  have 
been  circulated  in  society,  and  may  hereafter  be  related 
by  grave  historians.  But  during  the  fifteenth  century, 
— although,  from  the  Close  Roll,  the  Pell  Roll,  and  the 
Parliament  Roll,  we  have  minute  information  of  the  ap- 
pointment of  judges,  the  assembling  and  prorogation  of 
parliaments,  and  other  such  matters  as  were  considered 
"  of  record," — many  interesting  events,  the  universal 
subjects  of  conversation  when  they  occurred,  long  rested 
on  tradition,  and  were  orally  transmitted  by  one  genera- 
tion to  another,  till  a  chronicler  arose,  who  embraced 
the  period  to  which  they  were  ascribed,  and  who  related 
them  substantially  as  they  happened,  although  he  might 
be  chargeable  with  some  inaccuracy  or  exaggeration. 

The  first  book  in  which  there  is  an  account  of  the  im- 
prisonment of  Henry  the  Prince  of  Wales  by  Sir  W. 
Gascoigne,  was  printed  in  the  year  1534;  but  no  inter- 
vening writer  could  reasonably  have  been  expected  to 
relate  it.  We  should  remember  that,  during  a  great 
portion  of  this  period,  literature,  which  had  made  won- 
derful progress  for  half  a  century  before,  was  nearly 
extinguished  by  the  War  of  the  Roses,  and  that  Sir 
Thomas  More's  History  (ascribed  by  some  to  Cardinal. 
Morton),  the  only  historical  work  in  the  English  lan- 
guage previously  published,  begins  with  the  reign  of 
Edward  V. 

Sir  Thomas  Elyot,  who  thus  narrates  the  transaction 
in  his  work  entitled  "  THE  GOVERNOR,"  dedicated  to 
King  Henry  VIII.,  was  no  romancer,  but  introduces  it 
as  a  true  statement  of  facts,  among  other  historical  anec- 
dotes which  cannot  be  questioned  : — 

"  The  most  renouned  prince  king  Henry  the  fyfte,  late 
knynge  of  Englande,  durynge  the  lyfe  of  his  father  was 
noted  to  be  fiers  and  of  wanton  courage  :  it  hapned, 
that  one  of  his  seruauntes,  whom  he  fauoured  well,  was, 
for  felony  by  him  committed,  arrained  at  the  kynges 
benche :  whereof  the  prince  being  advertised  and  in- 


i4i2.]  WILLIAM    GASCOIGNE.  131 

censed  by  lyghte  persones  about  him,  in  furious  rage 
came  hastly  to  the  barre  where  his  seruente  strode  as  a 
prisoner,  and  commaunded  him  to  be  vngyued  and  set  at 
libertie  :  whereat  all  men  were  abashed,  reserved  the 
chief  Justice,  who  humbly  exorted  the  prince  to  be  con- 
tented, that  his  seruaunt  mought  be  ordred,  accordynge 
to  the  anciente  lawes  of  this  realme  :  or  if  he  wolde 
haue  hym  saued  from  the  rigour  of  the  lawes,  that  he 
shulde  obteyne,  if  he  moughte,  of  the  knyge  his  father, 
his  gratious  pardon,  whereby  no  lawe  or  justyce  shulde 
be  derogate.  With  whiche  answere  the  prince  nothynge 
appeased,  but  rather  more  inflamed,  endeuored  hym  selfe 
to  take  away  his  seruant.  The  iuge  considering  the 
perillous  example  and  inconuenience  that  mought  there- 
by ensue,  with  avalyant  spirite  and  courage,  commanded 
the  prince  vpon  his  alegeance,  to  leave  the  prisoner,  and 
depart  his  way.  With  which  commandment  the  prince 
being  set  all  in  a  fury,  all  chafed,  and  in  a  terrible  maner, 
came  vp  to  the  place  of  iudgment,  men  thynking  that 
he  wold  haue  slayne  the  iuge,  or  haue  done  to  hym 
some  damage  :  but  the  iuge  sittynge  styll  without  mou- 
ing,  declaring  the  maiestie  of  the  kynges  place  of  iuge- 
ment,  and  with  an  assured  and  bolde  countenaunce,  had 
to  the  prince  these  wordes  followyng : 

"  '  Syr,  remembre  yourselfe,  I  kepe  here  the  place  of 
the  kyng  your  soueraine  lorde  and  father,  to  whom  ye 
owe  double  obedience  :  wherfore  eftsoones  in  his  name, 
I  charge  you  desyte  of  your  wylfulness  and  vnlaufull  en- 
terprise, &  from  hensforth  giue  good  example  to  thoser 
whyche  hereafter  shall  be  your  propre  subjectes.  And 
nowe,  for  yourcontempte  and  disobedience,  go  you  to 
the  prysone  of  the  kynges  benche,  whetevnto  I  com- 
mytte  you,  and  remayne  ye  there  prysoner  vntyl  the 
pleasure  of  the  kynge  your  father  be  further  knowen. 

"  With  whiche  wordes  being  abashed,  and  also  won- 
drynge  at  the  meruaylous  gravitie  of  that  worshypfulle 
justyce,  the  noble  prince  layinge  his  weapon  aparte, 
doying  reuerence,  departed,  and  wente  to  the  kynges 
benche,  as  he  was  commanded.  Wherat  his  servauntes 
disdaynynge,  came  and  shewed  to  the  kynge  all  the  hole 
affaire.  Whereat  he  awhyles  studyenge,  after  as  a  man 
all  rauyshed  with  gladnes,  holdynge  his  eien  and  handes 


132  REIGN    OF    HENRY    IV.  [1414. 

vp  towards  heuen,  abraided,  saying  with  a  loud  voice, '  O 
mercifull  God,  howe  moche  am  I,  aboue  all  other  men, 
bounde  to  your  infinite  goodness,  specially  for  that  ye 
haue  gyuen  me  a  iudge,  who  feareth  nat  to  minister 
iustice,  and  also  a  sonne,  who  can  suffre  semblably ;  and 
obeye  iustice !' ' 

Hall,  whose  -Chronicle  was  published  at  the  com- 
mencement of  the  reign  of  Edward  VI.,  gives  another 
version  of  the  story,  varying  as  to  some  particulars — in 
the  same  manner  as  he  might  vary  from  other  writers  in 
relating  the  Battle  of  Bosworth.  Says  he — "  For  im- 
prisonment of  one  of  his  wanton  mates  and  unthrifty 
playfaires,  the  Prince  strake  the  Chief  Justice  with  his 
fist  on  his  face  ;  for  which  offense  he  was  not  only  com- 
mitted to  streight  prisone,  but  also  of  his  father  put  out 
of  the  privie  council  and  banished  the  court."1 

I  next  call  as  witnesses  two  lawyers,  very  dull,  but 
very  cautious  men,  Sir  Robert  Catlyne,  Chief  Justice  of 
the  King's  Bench,  and  Sir  John  Whidden,  a  Puisne 
Judge  of  that  Court,  in  the  beginning  of  the  reign  of 
Queen  Elizabeth,  who,  sticking  to  the  YEAR  BOOKS, 
probably  had  never  read  either  Elyot  or  Hall,  and  who 
knew  nothing  of  Gascoigne  except  by  the  sure  tradi- 
tions of  Westminster  Hall.  Crompton,  an  accurate 
juridical  writer,  who  then  published  a  book  entitled 
"  Authentic  et  Jurisdiction  des  Courts,"  in  reporting  a 
decision  of  the  Court  of  King's  Bench,  says: — 

"  Whidden  cites  a  case  in  the  time  of  Gascoigne,  Chief 
Justice  of  England,  who  committed  the  Prince  to  prison 
because  he  would  have  taken  a  prisoner  from  the  bar  of 
the  King's  Bench  ;  and  he,  very  submissively  obeying 
him,  went  thither,  according  to  order :  at  which  the 
King  was  highly  rejoiced  in  that  he  had  a  judge  who 
dared  to  minister  justice  upon  his  son  the  Prince,  and 
that  he  had  a  son  who  obeyed  him." 

Catlyne,  C.  J.,  is  then  represented  as  assenting  and  re- 
joicing in  the  praises  of  his  predecessor." 

The  drama  making  rapid  progress,  and  historical  plays 

1  4th  ed.  p.  4b. 

*  4th  ed.  1594.  p.  79.  "  Whidden  vouche  un  case  en  temps  Gascoigne 
Chief  Justice  D'Englitierr,  que  commit  le  Prince  (que  voile  aver  pris  un 
prisoner  del  barre  in  Banco  Regis)  al  prison  ;  que  luy  obey  humblement,  et 


1412.]  WILLIAM    GASCOIGNE.  133 

coming  into  fashion,  there  was  soon  after  produced  a 
very  popular  piece,  with  the  title  of  "  Henry  the  Fyfte, 
his  Victories,  containing  the  honorable  battle  of  Agin- 
court,  &c."  The  first  act  exhibits  many  of  his  pranks 
while  he  was  Prince  of  Wales,  with  the  scene  between 
him  and  Chief  Justice  Gascoigne.  The  author  follows 
Hall  in  supposing  that  a  blow  had  actually  been  inflicted, 
— which  I  make  no  doubt  was  an  exaggeration.  Of  one 
of  the  representations  of  this  play  we  have  a  very 
amusing  account  in  a  book  entitled  "  TARLETON's 
JESTS,"  published  in  the  reign  of  James  I.  The  famous 
comedian  of  that  name,  who  died  in  1592,  had  been  long 
the  delight  of  the  public  in  the  part  of  the  "  Clown, "- 
disregarding  the  precept  to  "  speak  no  more  than  was 
set  down  for  him."  But,  though  this  was  his  forte,  he 
could,  on  a  pinch,  take  a  graver  character,  and  personate 
a  Ghost  or  a  Judge.  It  so  happened  that  when  "  Henry 
the  Fyfte"  had  drawn  a  crowded  house,  it  was  dis- 
covered that  Lord  Chief  Justice  Gascoigne  had  got  so 
excessively  drunk  that  he  could  not  take  his  place  upon 
the  bench,  and  Tarleton  agreed  to  "  sit  for  him,"  still 
retaining  his  own  part  of  the  Crown,  who,  luckily,  was 
not  to  appear  in  the  presence  of  his  lordship.  The 
author,  after  intimating  the  difficulty  into  which  the 
company  had  been  thrown,  and  the  expedient  resorted 
to,  thus  proceeds  : — 

"  In  this  play  the  judge  on  the  bench  was  to  receive  a 
blow  of  Prince  Henry,  who  was  represented  by  one  Knoll, 
another  droll  comedian  of  those  times  ;  and,  when  it  was 
to  be  done,  he  struck  the  Chief  Justice  Tarlton  such  a 
swinging  box  on  the  ear  as  almost  felled  him  to  the 
ground,  and  set  the  whole  house  in  an  uproar  of  merri- 
ment. When  '  Tarlton  the  Judge'  went  off,  presently 
after  entered  '  Tarlton  the  Clown ;'  and,  according  to 
that  liberty  wherewith  the  players  in  those  days  were  in- 
dulged, of  intruding  interrogatories  of  their  own  in  the 
midst  of  their  acting,  he  very  simply  and  unconcernedly 
asked  the  occasion  of  that  laughter,  like  one  who  was  an 
utter  stranger  to  it.  '  O,'  said  another  of  the  actors, 

ala  auxi  a  son  commandment ;  in  que  le  Roy  grandement  rejoice  in  ceo 
quil  avoit  Justice  que  osast  minister  justice  a  son  fits  le  Prince  et  que  il 
avoit  Fits  que  luy  obey." 


i34  REIGN    OF    HENRY    IV.  [1412. 

'  hadst  thou  been  here  thou  hadst  seen  Prince  Henry  hit 
the  Judge  a  terrible  box  on  the  ear.'  '  What !  strike  a 
Judge  !'  quoth  Tarlton.  '  Nothing  less/  said  t'other. 
'  Then,'  replied  he, '  it  muit  be  terrible  to  the  Judge,  since 
the  very  report  of  it  so  terrifies  me,  that  methinks  the 
place  remains  so  fresh  still  on  my  cheek  that  it  burns 
again.'  This,  it  seems,  raised  a  greater  acclamation  in 
the  house  than  there  was  before  ;  and  this  was  one  ex- 
ample of  the  extempore  wit  or  humor  for  which  Tarlton 
was  so  much  admired  and  remembered  many  years  after 
his  death." 

The  case  which  I  advocate  is,  I  think,  materially 
strengthened  by  the  evidence  of  WILLIAM  SHAKSPEARE, 
who,  in  his  historical  plays,  although  very  careless  about 
dates,  is  scrupulously  accurate  about  facts,  and  never  in- 
troduces any  which  do  not  rest  upon  what  he  considered 
good  authority ;  inasmuch  that  our  notions  of  the  Plan- 
tagenet  reigns  are  drawn  from  him  rather  than  from  Hol- 
linshed,  Rapin,  or  Hume.  On  the  faith  of  tradition,  or 
of  books  which  he  had  read,  he  evidently  had  in  the 
truth  of  the  story  a  strong  belief,  which  is  constantly 
breaking  out.  Thus,  when  the  Chief  Justice  is  first  seen 
at  a  distance,  FalstafFs  page  says  "  Sir,  here  comes  the 
nobleman  that  committed  the  Prince  for  striking  him 
about  Bardolph."1 

Again,  on  news  arriving  of  the  death  of  Henry  IV.,  \ve 
have  the  following  diologue  : — 

Ch.  Justice.     "  I  would  his  majesty  had  called  me  with  him  ; 

The  service  that  I  truly  did  his  life 

Hath  left  me  open  to  all  injuries." 

Warwick.        "  Indeed,  I  think  the  young  King  loves  you  not." 
Ch.  Justice.     "  I  know  he  doth  not ;  and  do  arm  myself 

To  welcome  the  condition  of  the  time  ; 

Which  cannot  look  more  hideously  upon  me 

Than  I  have  drawn  it  in  my  fantasy. 

Sweet  princes,  what  I  did  I  did  in  honor, 

Led  by  the  impartial  conduct  of  my  soul ; 

And  never  shall  you  see  that  I  will  beg 

A  ragged  and  forstall'd  remission. 

If  true  and  upright  innocency  fail  me, 

I'll  to  the  King  my  master  that  is  dead, 

And  tell  him  who  hath  sent  me  after  him." 


1  Second  Part  of  Henry  IV.  act  i.  sc,  2. 


i4i2.J  WILLIAM    GASCOIGNE.  135 

When  the  Prince  enters,  as  Henry  V.,  he  thus  addresses 
the  Chief  Justice  : — 

"  You  are,  I  think,  assur'd  I  love  you  not." 
C&.  justice.     "  I  am  assur'd,  if  I  be  measur'd  rightly, 

Your  majesty  hath  no  just  cause  to  hate  me." 
King.  "  No ! 

How  might  a  prince  of  my  great  hopes  forget 

So  great  indignities  you  laid  upon  me  ? 

What !  rate,  rebuke,  and  roughly  send  to  prison 

The  immediate  heir  of  England  !    Was  this  easy  ? 

May  this  be  wash'd  in  Lethe,  and  forgotten  ?" 
Ch,  Justice.     "  I  then  did  use  the  person  of  your  father  ; 

The  image  of  his  power  lay  then  in  me  : 

And,  as  you  are  a  king,  spake  in  your  state,  j 

What  I  have  done  that  misbecame  my  place, 

My  person,  or  my  liege's  sovereignty." 
King.  "  You  are  right,  Justice,  and  you  weigh  this  well 

Therefore,  still  bear  the  balance  and  the  sword  : 

And  I  do  wish  your  honors  may  increase. 

Till  you  do  live  to  see  a  son  of  mine 

Offend  you,  and  obey  you  as  I  did."1 

It  was  imagined  that  the  authority  of  Shakspeare  on 
this  question  was  demolished,  and  a  great  triumph  was 
claimed  over  him  by  the  assertion  that  Sir  William  Gas- 
coigne  at  this  time  could  not  feel  any  apprehension  of 
the  earthly  consequences  of  any  deed  he  had  done  in  the 
body,  as  he  was  sleeping  in  his  grave,  having  died  some 
months  before  his  patron,  Henry  IV.  ;  but  I  shall  here- 
after prove  to  demonstration  that  Sir  William  Gascoigne 
survived  Henry  IV.  several  years,  and  actually  rilled  the 
office  of  Chief  Justice  of  the  King's  Bench  under  Henry 
V." 

In  the  same  reckless  spirit  of  questioning  what  has 
long  been  taken  for  simple  truth,  several  who  were  not 

1  Second  Part  of  Henry  IV.  act  v.  sc.  2. 

8  Henry  V.,  having  become  King  by  his  father's  death  on  the  2Oth  of 
March,  1413,  was  crowned  on  the  gth  of  April  following  ;  and  all  historians, 
chroniclers,  and  biograthers,  agree  that  the  following  day,  when  his  council 
was  sworn  in  (for  still  the  Kings  of  England  were  not  considered  as  fully  eu- 
titled  to  rule  before  their  coronation),  he  made  a  speech  in  which  he  re- 
nounced his  former  lewd  companions,  he  forgave  his  father's  councillors  who 
had  offended  him  by  trying  to  correct  his  faults,  and  he  reappointed  such  of 
the  judges  as  had  best  done  their  duty,  and  were  most  in  his  father's  con- 
fidence.— See  Wals.  382.  ;  Otturb,  273.  ;  Elm.  17.  Trussell's  Continuation 
of  Daniel,  introducing  Gascoigne's  name  and  makes  Henry,  after  relating 
the  commitment,  thus  conclude  :  "  For  which  act  of  justice  I  shall  ever 
hold  him  worthy  of  the  place  and  my  favor,  and  wish  all  my  judges  to  have 
the  like  undaunted  courage  to  punish  offenders  of  whatever  rank." — Cited  in 
Fuller's  Worthies,  505. 


136  REIGN    OF    HENRY    IV.          [1410— 

bold  enough  to  deny  that  Henry  V.,  when  Prince  of 
Wales,  was  committed  to  prison,  have  denied  the  honor 
of  the  act  to  Sir  William  Gascoigne,  and  have  started 
other  condidates  for  it.  The  "  Devonians,"  who  think 
that  nothing  great  or  good  can  have  been  done  in  Eng- 
land unless  by  a  "  worthy  of  Devon,"  taking  advantage 
of  the  language  of  chroniclers  who,  trusting  to  the  noto- 
riety of  the  story,  mentioned  the  judge  only  under  the 
designation  of  the  "  Chief  Justice,"  claim  the  commit- 
ment of  the  Prince  of  Wales  for  two  of  their  country- 
men, Chief  Justice  Hankford  and  Chief  Justice  Hody.1 
When  I  hear  of  high  Devonian  pretensions,  I  confess  I 
am  reminded  of  the  celebrated  saying  of  Sergeant  Davy, 
that  "  the  oftener  he  went  into  the  West,  he  better  under- 
stood how  the  WISE  MEN  came  from  the  East."  In  this 
instance  it  is  quite  certain  that  the  pretension  proceeds 
on  gross  ignorance  and  carelessness,  for  Sir  William 
Hankford  was  not  appointed  Chief  Justice  of  the  King's 
Bench  till  some  time  after  Henry  V.  had  actually  been 
on  the  throne,  and  (better  still)  Sir  John  Hody  was  not 
appointed  Chief  Justice  of  the  King's  Bench  till  many 
years  after  Henry  V.  had  been  in  his  grave,  viz.  :  the 
eighteenth  year  of  the  reign  of  his  son  and  successor, 
Henry  VI.9 

The  same  impossibility  does  not  stand  in  the  way  of  a 
claim  set  up  for  Sir  John  Markham  by  his  descendants, 
on  the  strength  of  some  supposed  family  papers  which 
had  not  been  communicated  to  the  public.  He  was  a 
Chief  Justice  from  the  2Oth  of  Richard  II.  to  Qth  Henry 
IV. ;  but  then  he  was  Chief  Justice  of  the  Common 
Pleas,  and,  although  the  commitment  is  sometimes  said 
to  have  been  to  the  Fleet — the  prison  of  that  Court — it 
is  quite  clear  that  no  arraignment  of  Bardolph,  or  any 
other  associate  of  the  Prince,  could  have  taken  place  in 
the  Court  of  Common  Pleas,  which  has  cognizance  only 
of  civil  actions.8 

I  think  I  am  now  fully  entitled  to  ask  for  a  verdict  in 
favor  of  my  client,  Sir  William  Gascoigne.  For  the 

1  Prince's  Worthies  of  Devon  ;  Risdon's  Worthies  of  Devon. 

*  Dug.  Chron.  Ser. 

8  Baker's  Chronicle  says,  that  the  commitment  was  to  the  Fleet,  but  at 
the  same  time  says  that  the  arraignment  of  the  7'rince's  servant,  which  gave 
rise  to  it,  was  at  the  King's  Bench  bar. 


i4i  2.]  WILLIAM    GASCOIGNE.  137 

honor  of  the  profession  to  which  I  am  proud  to  belong, 
I  do  feel  anxious  to  establish  the  fact  which  has  been 
taken  for  true  by  so  many  chroniclers,  historians,  moral- 
ists, and  poets. 

There  was  here  no  official  insolence,  or  strain  of  juris- 
diction, for  the  sake  of  gaining  popularity.  Independ- 
ently of  the  blow,  which  may  be  safely  disbelieved,  as 
inconsistent  with  the  generous  feeling  by  which  Henry 
was  actuated  in  his  wildest  moments, — he  had  insulted 
the  first  Criminal  Judge,  sitting  on  his  tribunal, — and  he 
had  no  privilege  from  arrest  beyond  that  of  a  peer — 
which  did  not  extend  to  such  an  enormity.  But  there 
had  been  no  precedent,  in  the  history  of  this  or  any  other 
European  monarchy,  of  a  Temporal  Judge,  with  dele- 
gated authority,  for  an  insult  offered  to  himself,  sending 
to  jail  the  son  of  the  Sovereign,  who  must  himself 
mount  the  throne  on  his  father's  death, — to  be  detained 
there  in  a  solitary  cell,  or  to  associate  with  common 
malefactors.  We  must  remember  that  Gascoigne  held 
his  office  during  pleasure,  and  that,  while  by  this  act  there 
seemed  a  certainty  of  his  being  dismissed,  and  made  an 
object  of  royal  vengeance,  on  a  demise  of  the  Crown, — 
there  was  a  great  danger  of  his  incurring  the  immediate 
resentment  of  the  reigning  Sovereign,  who  might  sup- 
pose that  the  divinity  which  ought  to  hedge  the  blood 
royal  had  been  profaned.  Every  thing  conspires  to  en- 
hance the  self-devotion  and  elevation  of  sentiment  which 
dictated  this  illustrious  act  of  an  English  Judge  ;  and 
the  noble  independence  which  has  marked  many  of  his 
successors  may,  in  no  small  degree,  be  ascribed  to  it : — 

"  While  dauntless  Gascoigne,  from  the  judgment-seat, 
To  justice  does  make  princely  power  submit, 
Dares  tame  by  law  him  who  all  laws  could  break, 
And  to  a  hero  raise  a  royal  rake  : 
While- we  such  precedents  can  boast  at  home, 
Keep  thy  Fabricius  and  thy  Cato,  Rome  !"  1 

Shakspeare,  who,  although  adhering  to  substantial 
facts,  in  dramatizing  English  history,  never  minds  ana- 
chronisms, even  with  respect  to  events  that  had  hap- 
pened very  shortly  before  his  own  time,4  represents  the 
commitment  of  the  Prince  of  Wales  by  Chief  Justice 

1  See  Biog.  Britan.,  title  "  Gascoigne." 

1  The  play  of  King  Henry  VIII.  abounds  with  them. 


138  REIGN    OF    HENRY    IV.  [1410— 

Gascoigne  to  have  been  before  the  insurrection  led  by 
Archbishop  Scrope  in  the  year  1405  ;  but  other  authori- 
ties place  it,  with  more  probability,  in  the  reign  of 
Henry  IV.,  when  the  Prince  had  taken  to  dissolute 
courses  from  want  of  public  employment,  and  had  been 
dismissed  from  the  Privy  Council, — making  way  for  his 
graver  brother  John.1 

We  do  not  read  of  any  other  remarkable  achievement 
of  the  Chief  Justice,  except  as  a  law  reformer.  There 
were  heavy  complaints  in  the  House  of  Commons — 
which  have  continued  down  to  our  own  time — that  ex- 
orbitant fees  were  levied  upon  litigants  by  the  officers 
of  the  different  Courts.  In  consequence,  Gascoigne  in- 
stituted an  inquiry  upon  the  subject,  and,  with  the  con- 
currence of  the  other  Judges,  published  a  table  of  such 
fees  as  might  be  legally  demanded.1  A  more  general 
grievance  was  stated  to  be  the  multiplication  of  attor- 
neys. In  the  reign  of  Edward  I.  there  were  only  140  in 
all  England,  and  their  number  now  exceeded  2000. 
This  was  a  proof  of  increasing  population,  wealth,  and 
civilization  ;  but  a  general  cry  arose  "  that  the  people 
were  pilled  by  barrators  and  pettifoggers ;"  and  there 
was,  no  doubt,  a  want  of  regulations  to  prevent  the  ad- 
mission of  improper  persons  into  the  profession,  and  to 
punish  those  who  acted  discreditably.  To  meet  these 
evils,  Chief  Justice  Gascoigne  framed  a  statute,  which 
was  adopted  by  the  legislature, — whereby  attorneys  were 
subjected  to  an  examination  before  they  were  admitted ; 
and,  if  convicted  of  any  fraud,  "  should  never  after  be 
received  to  make  any  suit  in  any  Court  of  the  king.'" 
He  likewise,  with  the  assent  of  his  brethren,  promul- 
gated a  rule  of  Court  that  attorneys  should  be  sworn 
every  term  "  to  deal  faithfully,  and  make  their  ransom 
to  the  king's  will." 

1  See  Hume,  vol.  iii.  p.  86 ;  Lingard,  vol.  iv.  319,  vol.  v.  2. 

8  Cotton's  Records,  p.  409. 

3  4  Hen.  IV.  c.  18.  The  preamble  (no  doubt  drawn  by  Gascoigne)  affords 
a  curious  specimen  of  legislative  language  in  those  days  : — Item  pur  pleu- 
sours  damages  et  meschiefs  quont  advenuz  devaunt  ces  heures  as  diverses 
gentzdu  Roialme  par  le  grant  nombredes  attournees  nient  sachentz  naprises 
de  la  loye  come  ils  soloient  estre  pardevant ;  ordeignez  est  et  establiz  que 
toutz  les  attournees  soient  examinaz  par  lez  Justices,"  &c. 

Till  the  stat.  West.  2.  c.  10.,  allowing  attorneys  to  be  made  to  prosecute 
and  defend  an  action,  every  suitor  was  obliged  to  appear  in  person,  unless 
by  special  license  under  the  King's  letters  patent. — 3  Bl.  Com.  26. 


WILLIAM    GASCOIGNE.  139 

Besides  administering  justice  to  the  parties  who  came 
regularly  before  his  tribunal  by  judicial  process,  Gas- 
coigne  followed  a  practice  which  continued  in  use  among 
Judges  of  the  highest  rank,  down  to  the  time  of  Sit 
Matthew  Hale,  in  the  reign  of  Charles  II.,  of  settling 
differences  privately  by  arbitration,  on  the  voluntary 
submission  of  the  parties.  We  are  minutely  informed 
of  the  circumstances  of  one  case  thus  referred  to  him, 
illustrating  graphically  the  manners  of  the  age : — 

"  William  Lord  Roos  complained  to  the  King  of  Sir 
Robert  Therwit,  a  Puisne  Judge  of  the  King's  Bench, 
for  not  only  unjustly  depriving  him  of  certain  lands  in 
the  county  of  Lincoln,  but  for  lying  in  wait  with  500 
men  to  seize  and  ill  use  him.  Sir  Robert  confessed  his 
fault  in  using  such  violent  means  to  assert  his  right,  and 
offered  to  abide  by  the  order  of  two  Lords  of  the  com- 
plainant's own  kindred  as  to  the  mode  of  settling  the 
dispute.  They  enjoined  Sir  Robert  to  make  a  great 
feast  at  Melton  le  Roos,  the  scene  of  the  riot ;  that  he 
should  prepare  two  fat  oxen,  twelve  sheep,  two  tuns  of 
Gascogny  wine,  with  other  suitable  provisions,  and  then 
assemble  thither  all  such  knights,  esquires  and  yeomen 
as  had  been  his  accomplices ;  that  they  should  confess 
their  misbehavior  to  the  Lord  Roos,  crave  his  pardon, 
and  make  him  an  offer  of  500  marks  in  recompense  ;  that 
the  Lord  Roos  should  refuse  their  money,  but  pardon 
them,  and  partake  of  their  dinner  in  token  of  his  recon- 
ciliation ;  and  that  the  title  to  the  land  should  be  settled 
by  that  learned  and  revered  Judge,  SIR  WILLIAM  GAS- 
COIGNE. We  are  not  told  what  his  award  was ;  but  we 
need  not  doubt  that  it  did  ample  justice  between  the 
parties."1 

Having  narrated  all  that  I  find  interesting  in  the  life 
of  Lord  Chief  Justice  Gascoigne,  I  have  only  to  discuss 
the  controverted  question  respecting  the  time  of  his 
death.  Fuller  (generally  a  trustworthy  authority)  fixes 
it  on  Sunday  the  i/th  day  of  December,  1412, — vouch- 
ing an  inscription  on  the  Judge's  tomb; — and  this  date 
was  long  considered  as  irrevocably  fixed, — writer  after 
writer  pointing  out  the  flagrant  violation  of  history  by 
Shakspeare,  in  bringing  the  deceased  Chief  Justice  on 

'Cotton's  Records,  anno  1417 


i4o  REIGN  OF  HENRY  F.  [1412— 

the  stage  along  with  King  Henry  V.,  and  recording  a 
dialogue  between  them.1 

But   a   difficulty  arose  from    the    i/th  of  December, 

1412,  having  fallen  not  on  a  Sunday  but  on  a  Saturday. 
Then  came  a  discovery,  that  in  the  summonses  for  a  new 
parliament  issued  by  Henry  V.  on  the  22nd  of  March, 

1413,  the  day  after  he  was  proclaimed  King,  is  found  one 
to  "  Sir  William  Gascoigne,  Knight,  Chief  Justice  of  our 
Lord  the  King,  assigned  to  hold  pleas  before  our  Lord 
the  King  before  the  King  himself."     But  as  his  name  is 
not  mentioned  in  the  roll  of  the  proceedings  of  the 
House  of  Lords,  when  Parliament  met  in  the  month  of 
May  following,  it  was  supposed  that  this  summons  must 
be  a  mistake ;  and  an  assertion  was  made,  that  Sir  Wil- 
liam Hankford,  his   successor,  had  previously  been  ap- 
pointed  Chief  Justice.     Some  who  could   not  believe 
that  the  date  1412  was  right,  carried  it  on  to  1413,  when 
the  I /th  December  did  fall  on  a  Sunday;  but  still  in- 
sisted, that  Gascoigne  never  was  Chief  Justice  of  the 
King's  Bench  under  Henry  V.,  and  that,  being  displaced 
on  the  demise  of  Henry  IV.,  the  story  of  his  having 
committed  the  Prince  of  Wales  to  prison  could  receive 
no  confirmation  from  the  dialogue  at  his  supposed  re- 
appointment. 

The  matter,  however,  has  been  placed  beyond  all 
doubt  by  the  discovery  of  the  Chief  Justice's  last  will 
and  testament,  in  the  registry  of  the  Ecclesiastical 
Court  at  York.  It  bears  date,  according  to  the  mode 
then  in  fashion  of  computing  time,  which  Puseyites  wish 
to  revive,  on  "  Friday  after  St.  Lucy's  Day,  A.  D.  1419." 
St.  Lucy's  Day  that  year  fell  on  Wednesday,  I3th  of 
December ;  and,  consequently,  the  will  was  made  on 
Friday,  the  I5th  of  December.  Probate  was  granted  on 
the  231!  of  the  same  month.  Consequently,  the  Chief 
Justice  must  have  died  on  the  i/th  of  December,  1419, 
which  was  that  year  again  on  a  Sunday.  The  testator 
says  in  his  will,  that  he  was  "  weake  in  bodie,  though 
of  sound  and  disposing  minde  and  understanding."1 

1  See  Gentleman's  Magazine,  vol.  xi.  p.  516. 

*  He  does  not  designate  himself  as  "  late  Chief  Justice,"  but  the  identity 
of  the  testator  with  the  Chief  Justice  is  placed  beyond  all  doubt  by  his  men- 
tien  of  different  members  of  his  family,  and  particularly  his  two  wives  ,  the 


I4i9-]  WILLIAM    GASCOIGNE.  141 

We  must,  therefore,  inevitably  come  to  the  conclu- 
sion, that  Sir  William  Gascoigne  did  survive  Henry  IV., 
that  he  was  reappointed  by  Henry  V.,  and  that  he  was 
summoned  as  Chief  Justice  of  the  King's  Bench  to  the 
first  parliament  of  that  monarch.  The  probability  is, 
that  soon  afterwards,  either  being  struck  by  some 
disease,  or  weakened  by  the  infirmities  of  age,  he  vol- 
untarily resigned  his  office,  and  spent  his  last  years  in 
retirement,  preparing  for  the  awful  change  which  awaited 
him. 

On  withdrawing  from  the  Bench,  he  must  have  carried 
with  him  the  respect  of  the  profession  and  the  public : 
and  we  know  that  he  was  still  treated  with  courtesy  and 
kindness  by  his  young  Sovereign ;  for  there  is  now  ex- 
tant a  royal  warrant,  dated  28th  November,  1414,  the 
year  after  his  retirement,  granting  to  "  our  deare  and 
well-beloved  William  Gascoigne,  Knt.,  an  allowance, 
during  the  term  of  his  natural  life,  of  four  bucks  and 
four  does  every  year  out  of  our  Forest  of  Pontifract."1 

He  had  an  ample  patrimonial  estate  to  retire  upon  ; 
and  to  such  an  extent  had  he  increased  his  riches,  that 
he  lent  large  sums  of  money  to  the  King."8 

He  was  buried  in  the  parish  church  of  Harwood,  in 
Yorkshire,  near  Gawthorp. 

A  tomb  was  afterwards  erected  there  to  his  memory, 
which  represents  him  in  a  kneeling  posture,  in  his  Judge's 
robes,  with  a  large  purse  tied  to  his  girdle,  a  long  dagger 
in  his  right  hand,  and  his  wives  kneeling  on  either  side 
of  him.8  A  brass  plate,  affixed  to  it,  bears  an  inscription 
of  which  the  following  words  are  still  legible  : — 

"  Orate  pro  Gulielmo  Gascoyne  et  Elizabethe  et  Johannse  uxoribus  ejus 
Hie  jacet  Gulielmus  Gascoyne  nuper  Capitalis  Justiciar.  de  Banco  Henrici 
nuper  Regis  Angl. 

Obiit  Die  Dominica  17  Die.  A.  D. ."4 

latter  of  whom  was  then  alive,  and  in  her  will,  subsequenetly  made  and  pre- 
served in  the  same  register,  styles  herself  "  widow  of  William  Gascoigne, 
late  Chief  Justice." — See  Tyler's  Life  of  Henry  V.  vol.  i.  379. 

1  See  Tyler's  Life  of  Henry  V.  vol.  i.  379. 

3  The  Pell  Roll,  I4th  March,  1420,  within  a  half  year  of  his  death,  states 
the  repayment  to  his  executors  of  a  sum  which  he  had  advanced  without 
security  to  the  Royal  Exchequer. 

3  There  is  a  good  portrait  of  him  from  the  monument,  in  the  Gentlemen's 
Magazine,  vol.  xli.  p.  566. 

4  The  Gentlemen's  Magazine,  vol.  xli.  p.  623,  professes  to  give  this  inscrip 
tion,  but  interpolates,  after  "  A.  D.",  "  1412,  14  Hen.  Quatre." 


i42  REIGN  OF  HENRY   VI.  [1419. 

The  rest  of  the  brass  plate  is  wanting,  and  is  said  to 
have  been  torn  off  by  one  of  Cromwell's  soldiers  during 
the  civil  wars. 

His  wife  Elizabeth  was  the  daughter  and  sole  heiress 
of  Sir  Alexander  Mowbray,  of  Rutlington,  in  the  county 
of  York ;  and  his  wife  Joan  was  the  daughter  of  Sir 
William  Pickering,  and  relict  of  Sir  Ralph  Greystock,  one 
of  the  Barons  of  the  Exchequer.  By  both  of  them  he 
had  a  numerous  issue  ;  and  several  great  families,  still 
flourishing,  trace  him  in  their  line.  His  eldest  son,  Sir 
William  Gascoigne  of  Gawthorpe,  was  one  of  Henry  V.'s 
best  officers,  and  gained  high  distinction,  not  only  in  the 
battle  of  Agincourt,  but  in  the  subsequent  campaigns  of 
Bedford  and  Talbot. 

I  must  confess  that  I  am  proud  of  Sir  William  Gas- 
coigne as  an  English  Judge,  and  reluctant  to  bid  him 
adieu  for  others  of  much  less  celebrity  and  much  less 
virtue. 


CHAPTER  IV. 

CHIEF    JUSTICES    TILL    TH4E    APPOINTMENT    OF     CHIEF 
JUSTICE   FITZJAMES   BY  KING  HENRY   VIII. 

SIR  WILLIAM  HANKFORD,  the  next  Chief 
Justice  of  the  King's  Bench,  although  he  was 
eminent  in  the  law  during  three  reigns,  is 
hardly  recollected  for  any  thing  he  did  in  his  lifetime, 
except  the  ingenious  and  successful  manner  in  which 
he  plotted  his  own  death.  He  is  one  of  the 
"  Worthies  of  Devon "  for  whom  his  countrymen 
claim  the  merit  of  having  committed  the  Prince  of 
Wales  to  prison  ;  and  he  certainly  was  born  at  Amerie  in 
that  county,  whatever  may  be  the  share  of  glory  which 
he  confers  upon  it.  Till  the  termination  of  his  career,  all 
that  I  can  relate  respecting  him  on  authentic  testimony 
is,  that  he  was  called  serjeant  in  the  I4th  of  Richard  II., 
was  made  a  Puisne  Judge  of  the  Common  Pleas  in  2ist 
of  Richard  II.,  was  promoted  to  be  Chief  Justice  of  the 
King's  Bench  in  the  ist  of  Henry  V.,1  and  was  reap- 
pointed  to  that  office  in  1st  of  Henry  VII.3 

He  had  been  a  well-conducted  man,  but  he  was  of  a 
melancholy  temperament,  and  he  became  tired  of  life, 
notwithstanding  the  high  position  which  he  occupied, 
and  the  respect  in  which  he  was  held.  He  wished  to 
shuffle  off  this  mortal  coil,  but  he  was  afraid  to  commit 
suicide  in  any  vulgar  way,  at  a  time  when  a  verdict  of 

1  There  is  some  doubt  as  to  the  exact  date  of  this  promotion.  It  must 
have  been  subsequent  to  22d  March,  1413,  when  Henry  V.  issued  writs  for 
his  first  parliament  to  which  Sir  William  Gascoigne  was  summoned  ;  and 
prior  to  ist  December,  1413,  for  on  that  day  writs  were  issued  for  a  new 
parliament  to  meet  on  the  2gth  of  January  following,  and  to  this  Sir 
V  illiam  Hankford  is  summoned  as  Chief  Justice. 

*  Dugcl.  Chr.  Ser. 


144  REIGN    OF    HENRY     VI.  [1422— 

felo  de  se  always  followed  such  an  act,  and  the  body  of 
the  supposed  delinquent  was  buried  in  a  cross  road  with 
a  stake  thrust  through  it.  He  at  last  resorted  to  this 
novel  expedient,  by  which  he  hoped  not  only  that  the 
forfeiture  of  his  goods  would  be  saved,  but  that  his  family 
would  escape  the  anguish  and  shame  arising  from  the  be- 
lief that  he  had  fallen  by  his  own  hand. — Several  of  his 
deer  having  been  stolen,  he  gave  strict  orders  to  his 
keeper  to  shoot  any  person  met  in  or  near  the  park,  at 
night,  who  would  not  stand  when  challenged.  He  then, 
in  a  dark  night,  threw  himself  in  the  keeper's  way,  and 
refusing  to  stand  when  challenged,  was  shot  dead  upon 
th6  spot,  "  This  story"  (says  Prince,  the  author  of  WOR- 
THIES OF  DEVON1)  "  is  authenticated  by  several  writers, 
and  the  constant  traditions  of  the  neighborhood;  and  I, 
myself,  have  been  shown  the  rotten  stump  of  an  oak 
under  which  he  is  said  to  have  fallen,  and  it  is  called 
HANKFORD'S  OAK  to  this  day." 

His  monument  stands  in  Amerie  church,  with  the  fol- 
lowing epitaph  inscribed  upon  it : 

''  Hie  jacet  Will.  Hankford,  Miles,  quondam  Capitalis 
Justiciarius  Domini  R.  de  Banco,  qui  obiit  duodecimo 
Die  Decembris  Anno  Domin.  1422." 

His  figure  is  portrayed  kneeling;  and  out  of  his 
mouth,  in  a  label,  these  two  sentences  proceed : — 

1.  "  Miserere  mei  Deus,  secundum  magnam  misericordiam  tuam  !" 

2.  "  Beati  qui  constodiunt  judicium  et  faciunt  justitiam  omni  tempore." 

Fuller,  in  a  true  Christian  spirit,  adds  :  "  No  charitable 
reader,  for  one  unadvised  act,  will  condemn  his  memory, 
who,  when  living,  was  habited  with  all  the  requisites  for 
a  person  of  his  place."  a 

During  the  reign  of  Henry  V.,  the  nation,  intent  on 
the  conquest  of  France,  paid  little  attention  to  the  ad- 
ministration of  justice  or  domestic  policy,  and  for  the 
first  twenty  years  of  the  reign  of  Henry  VI.  the  office  of 
Chief  Justice  of  the  King's  Bench  continued  to  be  held 
by  very  obscure  men, — Sir  William  Cheyne,1  Sir  John 
Ivyn,4  and  Sir  John  Hody,* — who  seem  decently  to  have 

1  Page  362.  *  Fuller,  i.  281, 

*  3ist  January,  1424-5.  *  2Oth  January,  1459-40. 

5  I3th  April,  1440.  k  would  seem  in  his  time  the  judge's  salaries  had 
been  thought  to  require  an  increase,  as  we  meet  with  this  entry  :  "  Johannes 


1462.]  JOHN    MARKHAM.  145 

discharged  their  judicial  duties,  without  gaining  distinc- 
tion either  by  decisions  or  law  reforms,  and  without  mix- 
ing in  any  of  the  political  struggles  which  agitated  the 
country.  The  reader  will  therefore  willingly  excuse  me 
from  inquiring  into  their  birth,  their  education,  their 
marriages,  and  their  places  of  sepulture. 

Next  comes  one  of  the  most  illustrious  of  Chief  Jus- 
tices, Sir  John  of  Fortescue,1  for  ever  to  be  had  in  re- 
membrance for  his  judicial  integrity,  and  for  his  im- 
mortal treatise  DE  LAUDIBVS  LEGVM  ANGLLE.  But, 
as  he  held  the  Great  Seal  of  England  while  in  exile, 
although  he  never  filled  the  "  marble  chair "  in  West- 
minster Hall,  I  have  already  sounded  his  praise  to  the 
best  of  my  ability  in  the  LIVES  OF  THE  CHANCELLORS."* 

He  held  the  office  of  Chief  Justice  above  twenty 
years  with  universal  applause.  During  the  latter  half 
of  this  period  the  War  of  the  Roses  was  raging ;  and  he, 
being  a  devoted  Lancastrian,  not  only  sat  in  judgment 
on  Yorkists  when  indicted  before  him,  but  valiantly  met 
them  in  the  field.  At  last,  after  the  fatal  battle  of  Tow- 
ton,  where  he  fought  by  the  side  of  Morton,  afterwards 
Archbishop  of  Canterbury,  he  fled  into  Scotland,  and, 
Edward  IV.  being  placed  on  the  throne,  he  was  super- 
seded by  a  Yorkist  Chief  Justice.  This  was  Sir  JOHN 
MARKHAM,8  of  whom  some  particulars  are  known  which 
may  not  be  uninteresting. 

He  was  descended  from  an  ancient  family  (the  Mark- 
hams  of  that  ilk)  who  had  been  seated  at  Markham  in 
Nottinghamshire  from  time  immemorial,  possessing  a 
small  estate  which  had  remained  without  addition  or 
diminution  for  many  generations.  John,  born  in  the 
reign  of  Henry  IV.,  not  contented  to  plow  his  pater- 
nal acres  without  being  (although  entitled  to  coat 
armor)  more  wealthy  than  yeomen  and  merchants  who 
lived  near  him,  determined  to  eclipse  his  ancestors  by 
following  the  law,  which  was  now  becoming  the  highway 
to  riches  and  distinction.  Having  been  called  to  the 
bar  when  very  young,  by  great  industry,  joined  to  great 
sharpness,  he  soon  got  into  extensive  practice,  and  began 

Hody  Capitalis  Justic.  habet  CXL  marcas   annuas  sibi  concessas,  ad  statum 
suum  decentius  manutenendum."     Pat.  18  Henry  VI.,  p,  3.  m.  5. 

1  25th  Jan.  1442-3.  *  Vol.  i.  ch.  xxii.  *  I3th  May,  1462. 

I. — 1 X 


146  REIGN    OF  HENRY    VI.  [1442— 

to  realize  the  prospects  which  had  dazzled  him  when 
a  boy.  In  the  year  1444  he  was  placed  at  the  head  of 
his  profession  by  being  made  King's  Serjeant,  and  soon 
after  accepted  the  office  of  a  Puisne  Judge  of  the  Court 
of  King's  Bench,  probably  hoping  ere  long  to  reach  the 
dignity  of  a  chiefship.  Such  hopes,  however,  are  often 
delusive.  He  remained  a  puisne  nineteen  years,  and 
would  have  died  a  puisne  but  for  the  civil  war  which 
broke  out  respecting  the  right  to  the  crown.  He  took, 
very  honestly,  a  different  view  of  the  controversy  from 
his  chief,  Sir  John  Fortescue,  who  had  actually  written 
pamphlets  to  prove  that  Richard  II.  was  rightfully  de- 
posed, that  Henry  IV.  had  been  called  to  the  throne  by 
the  estates  of  the  kingdom  and  the  almost  unanimous 
voice  of  the  people,  and  that  now,  in  the  third  generation, 
the  title  of  the  House  of  Lancaster  could  not  be  ques- 
tioned by  any  reasonable  politician  or  any  good  citizen. 
Markham  did  not  venture  to  publish  any  thing  on  the 
other  side,  but  in  private  conversation,  and  in  "  moots" 
at  the  Temple,  such  as  that  in  which  the  white  and  red 
roses  were  chosen  as  emblems  of  the  opposite  opinions, 
he  did  not  hesitate  to  argue  for  indefeasible  hereditary 
right,  which  no  length  of  possession  could  supersede, 
and  to  contend  that  the  true  heir  of  the  crown  of  Eng- 
land was  Richard,  Duke  of  York,  descended  from  the 
second  son  of  Edward  III.  His  sentiments  were  well 
known  to  the  Yorkist  leaders,  and  they  availed  them- 
selves of  the  legal  reasoning  and  the  historical  illustra- 
tions with  which  he  furnished  them.  He  never  sallied 
forth  into  the  field,  even  when,  after  the  death  of 
Richard,  the  gallant  youth  his  eldest  son  displayed  the 
high  qualities  which  so  wonderfully  excited  the  energies 
of  his  partisans.  However,  when  Henry  VI.  was  con- 
fined as  a  prisoner  in  the  Tower,  and  Fortescue  and  all 
the  Lancastrian  leaders  had  fled,  Markham  was  very  nat- 
urally and  laudably  selected  for  the  important  office  of 
Chief  Justice  of  the  King's  Bench.  Although  he  was 
such  a  strong  Legitimist,  he  was  known  not  only  to  be 
an  excellent  lawyer,  but  a  man  of  honorable  and  inde- 
pendent principles  The  appointment,  therefore,  gave 
high  satisfaction,  and  was  considered  a  good  omen  of 
the  new  regime. 


1469.]  JOHN    MARKHAM.  147 

He  held  the  office  above  seven  years,  with  unabated 
credit.  Not  only  was  his  hand  free  from  bribes,  but  so 
was  his  mind  from  every  improper  bias.  An  old  author 
relates  the  following  anecdote,  to  illustrate  his  purity 
and  his  good  humor: 

"  A  lady  would  traverse  a  suit  of  law  against  the  will 
of  her  husband,  who  was  contented  to  buy  his  quiet  by 
giving  her  her  will  therein,  though  otherwise  persuaded, 
in  his  judgment,  the  cause  would  go  against  her.  This 
lady,  dwelling  in  the  shire  town,  invited  the  Judge  to 
dinner,  and  (though  thrifty  enough  herself)  treated  him 
with  sumptuous  entertainment.  Dinner  being  done, 
and  the  cause  being  called,  the  Judge  clearly  gave  it 
against  her.  And  when,  in  passion,  she  vowed  never  to 
invite  Judge  again,  'Nay,  wife,'  said  he,  'vow  never  to 
invite  a  just  judge  any  more.'  "' 

It  was  allowed  that,  when  sitting  on  the  bench,  no  one 
could  have  discovered  whether  he  was  Yorkist  or  Lan- 
castrian ;  the  adherents  of  the  reigning  dynasty  com- 
plaining (I  dare  say  very  unjustly),  that,  to  obtain  a 
character  for  impartiality,  he  showed  a  leaning  on  the 
Lancastrian  side.a 

At  last,  though  he  cherished  his  notions  of  hereditary 
right  with  unabating  constancy,  he  forfeited  his  office 
because  he  would  not  prostitute  it  to  the  purpose  of  the 
King  and  the  Ministers  in  wreaking  their  vengeance  on 
the  head  of  a  political  opponent.  Sir  Thomas  Cooke, 
who  inclined  to  the  Lancastrians,  though  he  had  con- 
ducted himself  with  great  caution,  was  accused  of 
treason,  and  committed  to  the  Tower.  To  try  him,  a 
special  commission  was  issued,  over  which  Lord  Chief 
Justice  Markham  presided,  and  the  Government  was 
eager  for  a  conviction.  But  all  that  could  be  proved 
against  the  prisoner  was,  that  he  entered  into  a  treaty 
to  lend,  on  good  security,  a  sum  of  1000  marks,  for  the 
use  of  Margaret,  the  Queen  of  the  dethroned  Henry  VI. 
The  security  was  not  satisfactory,  and  the  money  was 

1  Fuller,  ii.  248. 

1  Fuller,  in  praising  Fortescue  and  Markham,  says,  "  These  I  may  call 
two  Chief  Justices  of  the  Chief  Justices,  for  their  signal  integrity  ;  for 
though  the  one  of  them  favored  the  HOUSE  OF  LANCASTER,  and  the  other 
of  YORK,  in  the  titles  to  the  crown,  both  of  them  favored  the  HOUSE  OF 
JUSTICE  in  matters  betwixt  party  and  parfy." 


148  REIGN    OF    EDWARD    IV.  [1470, 

not  advanced.  The  Chief  Justice  ruled  that  this  did 
not  amount  to  treason,  but  was  at  most  misprision  of 
treason.  Of  this  last  offense  the  prisoner  being  found 
guilty,  he  was  subjected  to  fine  and  imprisonment,  but 
he  saved  his  life  and  his  lands.  King  Edward  IV.  was 
in  a  fury,  and,  swearing  that  Markham,  notwithstanding 
his  high  pretensions  to  loyalty,  was  himself  little  better 
than  a  traitor,  ordered  that  he  should  never  sit  on  the 
bench  any  more  ;  and  appointed  in  his  place  a  successor, 
who,  being  a  puisne,  had  wished  to  trip  up  the  heels  of 
his  chief,  and  had  circulated  a  statement,  to  reach  the 
King's  ear,  that  Sir  Thomas  Cooke's  offense  was  a  clear 
overt  act  of  high  treason.1  Markham  bore  his  fall  with 
much  dignity  and  propriety, — in  no  respect  changing 
his  principles,  or  favoring  the  movement  which  for  a 
season  restored  Henry  VI.  to  the  throne  after  he  had 
been  ten  years  a  prisoner  in  the  Tower.  Fuller  says, 
"John  Markham,  being  ousted  of  his  Chief  Justiceship, 
lived  privately  but  plentifully  the  remainder  of  his  life, 
having  fair  lands  by  his  marriage  with  an  heiress,  besides 
the  estate  he  acquired  by  his  practice  and  his  paternal 
inheritance." 

The  ex-Chief  Justice  died  some  time  after  the  restora- 
tion of  Edward  IV.,  and  was  buried  in  Markham  Church, 
a  grave-stone  being  placed  over  his  remains,  with  this 
simple  inscription  : — 

"  Orate  pro  anima  Johannis  Markham  Justiciarii." 

For  ages  after  his  death  he  was  held  up  as  the  pattern 
of  an  upright  judge.  Thus  Sir  Nicholas  Throckmorton, 
when  tried  before  Lord  Chief  Justice  Bromley,  in  the 
reign  of  Elizabeth,  said, — 

"  I  would  you,  my  Lord  Chief  Justice,  should  incline 
your  judgments  rather  after  the  example  of  your  honor- 
able predecessors,  Justice  Markham  and  others,  which 
did  eschew  corrupt  judgments,  judging  directly  and  sin- 
cerely after  the  law,  and  in  principles  in  the  same,  than 
after  such  men  as,  swerving  from  the  truth,  the  maxim, 

1  Stow  says  he  lost  his  office  through  the  Lord  Rivers  and  the  Duchess  of 
Bedford  :  p.  450.  Markham's  dismissal  has  been  connected  with  two  other 
celebrated  trials  for  treason  in  the  reign  of  Henry  IV.,  but  it  is  quite  clear 
that  neither  ol  them  took  jrlace  before  him. — See  i  St.  Tr.  894  ;  I  Hale's 
Pleas  of  Crown,  115. 


1450.]  THOMAS    BILLING.  149 

and  the  law,  did  judge  corruptly,  maliciously,  and  affec- 
tionately."1 

Upon  the  dismissal  of  Sir  John  Markham,  Edward 
IV.,  who  no  longer  showed  the  generous  spirit  which 
had  illustrated  his  signal  bravery  while  he  was  fighting 
for  the  crown,  and  now  abandoned  himself  by  turns  to 
voluptuousness  and  cruelty,  tried  to  discover  the  fittest 
instrument  that  could  be  found  for  gratifying  his  resent- 
ments by  a  perversion  of  the  forms  of  law,  and  with 
felicity  fixed  upon  Sir  Thomas  Billing,  who,  by  all  sorts 
of  meannesses,  frauds  and  atrocities, — aided  by  natural 
shrewdness,  or,  rather,  low  cunning, — had  contrived  to 
raise  himself  from  deep  obscurity  to  be  a  Puisne  Judge 
of  the  King's  Bench  ;  and  in  that  situation  had  shown 
himself  ready  to  obey  every  mandate,  and  to  pander  to 
every  caprice  of  those  who  could  give  him  still  higher 
elevation.  This  is  one  of  the  earliest  of  the  long  list  of 
politico-legal  adventurers  who  have  attained  to  em- 
inence by  a  moderate  share  of  learning  and  talent,  and 
an  utter  want  of  principle  and  regard  for  consistency. 

His  family  and  the  place  of  his  education  are  un- 
known.5 He  was  supposed  to  have  been  the  clerk  of  an 
attorney  ;  thus  making  himself  well  acquainted  with  the 
rules  of  practice,  and  the  less  reputable  parts  of  the  law. 
However,  he  contrived  (which  must  have  been  a  difficult 
matter  in  those  days,  when  almost  all  who  were  admitted 
at  the  Inns  of  Court  were  young  men  of  good  birth  and 
breeding)  to  keep  his  terms  and  to  be  called  to  the  bar. 
He  had  considerable  business,  although  not  of  the  most 
creditable  description  ;  and  in  due  time  he  took  the  de- 
gree of  the  coif. 

His  ambition  grew  with  his  success,  and  nothing 
would  satisfy  him  but  official  preferment.  Now  began 
the  grand  controversy  respecting  the  succession  to  the 
crown ;  and  the  claim  to  it  through  the  house  of  Mor- 
timer, which  had  long  been  a  mere  matter  of  specula- 
tion, was  brought  into  formidable  activity  in  the  person 
of  Richard,  Duke  of  York.  Billing, — thinking  that  a 

1 1  St.  Tr.  894. 

s  Fuller  says  that  he  was  born  in  Northamptonshire,  and  held  lands  at 
Ashwell  in  that  county  ;  but  is  silert  both  as  to  his  ancestors  and  descend- 
ants, and  is  evidently  ashamed  of  introducing  such  a  charactei  among 
Worthies." 


150  REIGN    OF    EDWARD    IV.  [1458. 

possession  of  above  half  a  century  must  render  the  Lan- 
castrian cause  triumphant,  notwithstanding  the  im- 
becility of  the  reigning  sovereign, — was  outrageously 
loyal.  He  derided  all  objections  to  a  title  which  the 
nation  had  so  often  solemnly  recognized  ;  enlarging  on 
the  prudence  of  Henry  IV.,  the  gallantry  of  Henry  V., 
and  the  piety  of  the  holy  Henry  VI.,  under  whose  mild 
sway  the  country  now  flourished, — happily  rid  of  all  its 
continental  dependencies.  He  even  imitated  the  ex- 
ample of  Sir  John  Fortescue,  and  published  a  treatise 
upon  the  subject ;  which  he  concluded  with  an  exhorta- 
tion "  that  all  who  dared,  by  act,  writing,  or  speech,  to 
call  in  question  the  power  of  Parliament  to  accept  the 
resignation  of  Richard  II.,  or  to  depose  him  for  the 
crimes  he  had  committed  and  to  call  to  the  throne  the 
member  of  the  royal  family  most  worthy  to  fill  it  accord- 
ing to  the  fashion  of  our  Saxon  ancestors,  should  be 
proceeded  against  as  traitors."  This  so  pleased  Wayn- 
flete  the  Chancellor,  and  the  other  Lancastrian  leaders, 
that  Billing  was  thereupon  made  King's  Serjeant,  and 
knighted. 

When  the  right  to  the  crown  was  argued,  like  a  peer- 
age case,  at  the  bar  of  the  House  o.f  Lords,1  Billing  ap- 
peared as  counsel  for  Henry  VI.,  leading  the  Attorney 
and  Solicitor-General ;  but  it  was  remarked  that  his  fire 
had  slackened  much,  and  he  was  very  complimentary  to 
the  Duke  of  York,  who,  since  the  battle  of  Northamp- 
ton, had  been  virtually  master  of  the  kingdom. 

We  know  nothing  more  of  the  proceedings  of  this  un- 
principled adventurer  till  after  the  fall  of  Duke  Rich- 
ard, when  the  second  battle  of  St.  Alban's  had  placed 
his  eldest  son  on  the  throne.  Instantly  Sir  Thomas 
Billing  sent  in  his  adhesion  ;  and  such  zeal  did  he  express 
in  favor  of  the  new  dynasty,  that  his  patent  of  King's 
Serjeant  was  renewed,  and  he  became  principal  law  ad- 
viser to  Edward  IV.  When  Parliament  assembled,  re- 
ceiving a  writ  of  summons  to  the  House  of  Lords,  he 
assisted  in  framing  the  acts  by  which  Sir  John  Fortescue 
and  the  principal  Lancastrians,  his  patrons,  were  at- 
tainted, and  the  three  last  reigns  were  pronounced  tyran- 
nical usurpations.  He  likewise  took  an  active  part  in 

1  Lives  of  Chancellors,  vol.  i.  ch.  xxii. 


1465- J  THOMAS    BILLING.  15! 

the  measures  by  which  the  persevering  efforts  of  Queen 
Margaret  to  regain  her  ascendancy  were  disconcerted, 
and  Henry  VI.  was  lodged  a  close  prisoner  in  the  Tower 
of  London. 

Sir  John  Markham,  the  honorable  and  consistent 
Yorkist,  now  at  the  head  of  the  administration  of  the 
criminal  law,  was  by  no  means  so  vigorous  in  convicting 
Lancastrians,  or  persons  suspected  of  Lancastrianism,  as 
Edward  and  his  military  adherents  wished  ;  and  when 
state  prosecutions  failed,  there  were  strong  murmurs 
against  him.  In  these  Mr.  Serjeant  Billing  joined,  sug- 
gesting how  much  better  it  would  be  for  the  public 
tranquillity  if  the  law  were  properly  enforced.  It  would 
have  appeared  very  ungracious  as  well  as  arbitrary  to 
displace  the  Chief  Justice  who  had  been  such  a  friend 
to  the  House  of  York,  and  was  so  generally  respected. 
That  there  might  be  one  Judge  to  be  relied  upon,  who 
might  be  put  into  commissions  of  oyer  and  terminer, 
Billing  was  made  a  Puisne  Justice  of  the  Court  of  King's 
Bench.  He  was  not  satisfied  with  this  elevation,  which 
little  improved  his  position  in  the  profession;  but  he 
hoped  speedily  to  be  on  the  woolsack,  and  he  was  re- 
solved that  mere  scruples  of  conscience  should  not  hold 
him  back. 

Being  thus  intrusted  with  the  sword  of  justice,  he 
soon  fleshed  it  in  the  unfortunate  Walter  Walker,  in- 
dicted before  him  on  the  statute  25  Edward  III.,  for 
compassing  and  imagining  the  death  of  the  King.  The 
prisoner  kept  an  inn  called  the  CROWN,  in  Cheapside, 
in  the  City  of  London ;  and  was  obnoxious  to  the  gov- 
ernment because  a  club  of  young  men  met  there  who 
were  suspected  to  be  Lancastrians,  and  to  be  plotting 
the  restoration  of  the  imprisoned  King.  But  there  was 
no  witness  to  speak  to  any  such  treasonable  consult ; 
and  the  only  evidence  to  support  the  charge  was,  that 
the  prisoner  had  once,  in  a  merry  mood,  said  to  his  son, 
then  a  boy,  "  Tom,  if  thou  behavest  thyself  well,  I  will 
make  thee  heir  to  the  CROWN." 

Counsel  were  not  allowed  to  plead  in  such  cases  then, 
or  for  more  than  three  centuries  after;  but  the  poor 
publican  himself  urged  that  he  never  had  formed  any 
evil  intention  upon  the  King's  life, — that  he  had  ever 


152  REIGN    OF    EDWARD    IV.  [1470. 

peaceably  submitted  to  the  ruling  powers, — and  that 
though  he  could  not  deny  the  words  imputed  to  him, 
they  were  only  spoken  to  amuse  his  little  boy,  meaning 
that  he  should  succeed  him  as  master  of  the  Crown 
Tavern,  in  Cheapside,  and,  like  him,  employ  himself  in 
selling  sack. 

Mr.  Justice  Billing,  however,  ruled — 

"  That  upon  the  just  construction  of  the  Statute  of 
Treasons,  which  was  only  declaratory  of  the  common 
law,  there  was  no  necessity,  in  supporting  such  a  charge, 
to  prove  a  design  to  take  away  the  natural  life  of  the 
King;  that  any  thing  showing  a  disposition  to  touch 
his  royal  state  and  dignity  was  sufficient ;  and  that  the 
words  proved  were  inconsistent  with  that  reverence  for 
the  hereditary  descent  of  the  crown  which  was  due  from 
every  subject  under  the  oath  of  allegiance :  therefore,  if 
the  jury  believed  the  witness,  about  which  there  could 
be  no  doubt,  as  the  prisoner  did  not  venture  to  deny  the 
treasonable  language  which  he  had  used,  they  were 
bound  to  find  him  guilty." 

A  verdict  of  guilty  was  returned,  and  the  poor  pub- 
lican was  accordingly  hanged,  drawn,  and  quartered.1 

Mr.  Justice  Billing  is  said  to  have  made  the  criminal 
law  thus  bend  to  the  wishes  of  the  King  and  the  minis- 
ters in  other  cases,  the  particulars  of  which  have  not 
been  transmitted  to  us  ;  and  he  became  a  special  favorite 
at  court,  all  his  former  extravagances  about  cashiering 
Kings  and  electing  others  in  their  stead  being  forgotten, 
in  consideration  of  the  zeal  he  displayed  since  his  con- 
version to  the  doctrine  of  "  divine  right." 

Therefore,  when  the  Chief  Justice  had  allowed  Sir 
Thomas  Cooke  to  escape  the  penalties  of  treason,  after 
his  forfeitures  had  been  looked  to  with  eagerness  on  ac- 
count of  the  great  wealth  he  had  accumulated,  there  was 
a  general  cry  in  the  palace  at  Westminster  that  he 
ought  not  to  be  permitted  longer  to  mislead  juries,  and 
that  Mr.  Justice  Billing,  of  such  approved  loyalty  and 
firmness,  should  be  appointed  to  succeed  him,  rather 
than  the  Attorney  or  Solicitor  General,  who,  getting  on 
the  Bench,  might,  like  him,  follow  popular  courses. 

Accordingly,  a  supcrscdcas  to  Sir  John  Markham  was 
1  Baker's  Chron.  p.  299  ;  Ilale's  Pleas  of  the  Crown,  vol.  i.  p.  115. 


X47o.]  THOMAS    BILLING.  153 

made  out  immediately  after  the  trial  of  Rex  v.  Cookc, 
and  the  same  day  a  writ  passed  the  Great  Seal  whereby 
"  the  King's  trusty  and  well-beloved  Sir  Thomas  Billing, 
Knight,  was  assigned  as  Chief  Justice  to  hold  pleas 
before  the  King  himself." 

The  very  next  term  came  on  the  trial  of  Sir  Thomas 
Burdet.  This  descendant  of  one  of  the  companions  of 
William  the  Conqueror,  and  ancestor  of  the  late  Sir 
Francis  Burdett,  lived  at  Arrow,  in  Warwickshire,  where 
he  had  large  possessions.  He  had  been  a  Yorkist,  but 
somehow  was  out  of  favor  at  court  ;  and  the  King,  mak- 
ing a  progress  in  those  parts,  had  rather  wantonly  en- 
tered his  park,  and  hunted  and  killed  a  white  buck  of 
which  he  was  peculiarly  fond.  When  the  fiery  knight, 
who  had  been  from  home,  heard  of  this  affair,  which  he 
construed  into  a  premeditated  insult,  he  exclaimed,  "  I 
wish  that  the  buck,  horns  and  all,  were  in  the  belly  of 
the  man  who  advised  the  King  to  kill  it ;"  or,  as  some 
reported,  "  were  in  the  King's  own  belly."  The  oppor- 
tunity was  thought  favorable  for  being  revenged  on 
an  obnoxious  person.  Accordingly  he  was  arrested, 
brought  to  London,  and  tried  at  the  King's  Bench  bar 
on  a  charge  of  treason,  for  having  compassed  and 
imagined  the  death  and  destruction  of  our  lord  the 
King. 

The  prisoner  proved,  by  most  respectable  witnesses, 
that  the  wish  he  had  rashly  expressed  was  applied  only 
to  the  man  who  advised  the  King  to  kill  the  deer,  and 
contended  that  the  words  did  not  amount  to  treason, 
and  that — although,  on  provocation,  he  had  uttered  an 
irreverent  expression,  which  he  deeply  regretted — in- 
stead of  having  any  design  upon  the  King's  life,  he  was 
ready  to  fight  for  his  right  to  the  crown,  as  he  had  done 
before, — and  that  he  would  willingly  die  in  his  defense. 

"  Lord  Chief  Justice  Billing  left  it  to  the  jury  to  con- 
sider what  the  words  were  ;  for  if  the  prisoner  had  only 
expressed  a  wish  that  the  buck  and  his  horns  were  in  the 
belly  of  the  man  who  advised  the  King  to  kill  the  buck, 
it  would  not  be  a  case  of  treason,  and  the  jury  would  be 
bound  to  acquit ;  but  the  story  as  told  by  the  witnesses 
for  the  Crown  was  much  more  probable,  for  Sovereigns 
were  not  usually  advised  on  such  affairs,  and  it  had  been 


154  REIGN    OF    EDWARD    IV.  [1470. 

shown  that  on  this  occasion  the  King  had  acted  entirely 
of  his  own  head,  without  any  advisers,  as  the  prisoner, 
when  he  uttered  the  treasonable  words,  must  have  well 
known  :  then,  if  the  words  really  were  as  alleged  by  the 
witnesses  for  the  Crown,  they  clearly  did  show  a  treason- 
able purpose.  Words  merely  expressing  an  opinion, 
however  erroneous  the  opinion,  might  not  amount  to 
treason  ;  but  when  the  words  refer  to  a  purpose,  and  in- 
cite to  an  act,  they  might  come  within  the  statute.  Here 
the  King's  death  had  certainly  been  in  the  contemplation 
of  the  prisoner  ;  in  wishing  a  violence  to  be  done  which 
must  inevitably  have  caused  his  death,  he  imagined  and 
compassed  it.  This  was,  in  truth,  advising,  counseling, 
and  commanding  others  to  take  away  the  sacred  life  of 
his  Majesty.  If  the  wicked  deed  had  been  done,  would 
not  the  prisoner,  in  case  the  object  of  his  vengeance  had 
been  a  subject,  have  been  an  accessory  before  the  fact  ? 
But  in  treason  accessories  before  the  fact  were  principals, 
and  the  prisoner  was  not  at  liberty  to  plead  that  what  he 
had  planned  had. not  been  accomplished.  Therefore  if 
the  jury  believed  that  he  had  uttered  the  treasonable 
wish  directed  against  his  Majesty's  own  sacred  person, 
they  were  bound  to  convict  him." 

The  jury  immediately  returned  a  verdict  of  GUILTY ; 
and  the  frightful  sentence  in  high  treason,  being  pro- 
nounced, was  carried  into  execution  with  all  its  horrors. 
This  barbarity  made  a  deep  impression  on  the  public 
mind,  and  to  aggravate  the  misconduct  of  the  Judge,  a 
rumor  was  propagated  that  the  late  virtuous  Chief  Justice 
had  been  displaced  because  he  had  refused  to  concur  in 
it.  After  the  death  of  Edward  IV.,  in  the  famous  speech 
delivered  to  the  citizens  of  London  to  induce  them  to 
set  aside  his  children,  and  to  have  the  Duke  of  Glouces- 
ter for  their  king,  the  Duke  of  Buckingham  says — "  Your 
goods  were  taken  from  you  much  against  your  will,  so 
that  every  man  was  to  pay,  not  what  he  pleased,  but 
what  the  king  would  have  him  ;  who  never  was  moderate 
in  his  demands,  always  exorbitant,  turning  forfeitures 
into  fines,  fines  into  ransoms  ;  small  offenses  into  mis- 
prisions  of  treason,  and  misprision  into  treason  itself. 
We  need  not  give  you  the  examples  of  it.  Burdet's  case 
will  never  be  forgot ;  who,  for  a  word  spoken  in  haste, 


1470.]  THOMAS   BILLING.  155 

was  cruelly  beheaded.  Did  not  Judge  Markham  resign 
his  office  rather  than  join  with  his  brethren  in  passing 
that  illegal  sentence  upon  that  honest  man  ?" 

On  this  rhetorical  authority,  Lord  Hale,  commenting 
in  his  PLEAS  OF  CROWN  upon  these  two  cases  of  Walker 
and  Burdet,  for  words,  observes,  "  Both  were  attaint  of 
high  treason,  and  executed,  though  Markham,  Chief  Jus- 
tice, rather  chose  to  lose  his  place  than  assent  to  the  lat- 
ter judgment."1  But  I  believe  that  Burdet's  prosecution 
had  not  been  commenced  till  Markham's  removal  had 
been  caused  by  his  supposed  misconduct  on  the  trial  of 
Sir  John  Cooke.2 

Lord  Chief  Justice  Billing,  having  justified  his  promo- 
tion by  the  renegade  zeal  he  displayed  for  his  new  friends, 
and  enmity  to  his  old  associates,  was  suddenly  thrown 
into  the  greatest  perplexity,  and  he  must  have  regretted 
that  he  had  ever  left  the  Lancastrians.  One  of  the  most 
extraordinary  revolutions  in  history — when  a  long  con- 
tinuance of  public  tranquillity  was  looked  for — without  a 
battle,  drove  Edward  IV.  into  exile,  and  replaced  Henry 
VI.  on  the  throne,  after  he  had  languished  ten  years  as  a 
captive  in  the  Tower  of  London. 

There  is  no  authentic  account  of  Billing's  deportment 
in  this  crisis,  and  we  can  only  conjecture  the  cunning 
means  he  would  resort  to,  and  the  pretenses  he  would 
set  up,  to  keep  his  place  and  to  escape  punishment.  Cer- 
tain it  is,  that  within  a  few  days  from  the  time  when 
Henry  went  in  procession  from  his  prison  in  the  Tower 
to  his  palace  in  Westminster,  with  the  crown  on  his 
head,  while  almost  all  other  functionaries  of  the  late 

1  Vol.  i.  p.   115.     This  sentence  is  repeated  in  the  text  of  Blackstone 
(Com.  vol.  iv.  p.  80).     Hume,  to  add  to  the  effect  of  his  narrative,  thinks  fit 
to  connect  this  atrocity  with  the  murder  of  the  Duke  of  Clarence,  and  post- 
pones it  till  1477,  nearly  eight  years  after  Markham  had  been  displaced,  and 
Billing  had  been  appointed  to  succeed  him. — (Vol.  iii.  p.  261.)  See  I  St.  Tr. 
275.     Burdet  had  been  a  retainer  of  the  Duke  of  Clarence,  who  very  prob- 
ably reproached  Edward  IV.  with  his  violent  death,  but  this  event  must 
have  happened  long  before  the  fatal  quarrel  between  the  two  royal  broth- 
ers. 

2  In  reference  to  this  case,  where  the  conviction  was  for  misprision  of 
treason,  the  Duke  of  Buckingham  asks,  "  Were  you  not  all  witnesses  of  the 
barbarous  treatment  one  of  your  own  body,  the  worshipful  Alderman  Cook, 
met  with  ?    And  you  your  own  selves  know  too  well  how  many  instances  of 
this  kind  I  might  name  among  you." — Sir  Thomas  More's  History  of  Rich- 
ard III. ;  Kennet,  498. 


156  REIGN    OF    EDWARD    IV.  [1470. 

Government  had  fled,  or  were  shut  up  in  jail,  a  writ 
passed  the  Great  Seal,  bearing  date  the  49th  year  of  his 
reign,  by  which  he  assigned  "  his  trusty  and  well-beloved 
Sir  John  Billing,  Knight,  as  his  Chief  Justice  to  hold 
picas  in  his  Court  before  him."1  There  can  be  as  little 
doubt  that  he  was  present  at  the  parliament  which  was 
summoned  immediately  after  in  Henry's  name,  when  the 
crown  was  entailed  on  Henry  and  his  issue,  Edward  was 
declared  an  usurper,  his  most  active  adherents  were  at- 
tainted, and  all  the  statutes  which  had  passed  during  his 
reign  were  repealed.  It  is  not  improbable  that  there  had 
been  a  secret  understanding  between  Billing  and  the  Earl 
of  Warwick  (the  king  maker),  who  himself  so  often 
changed  sides,  and  who  was  now  in  possession  of  tile 
whole  authority  of  the  government. 

While  Edward  was  a  fugitive  in  foreign  parts,  the  doc- 
trine of  divine  right  was,  no  doubt,  at  a  discount  in  Eng- 
land, and  Billing  may  have  again  bolted  his  arguments 
about  the  power  of  the  people  to  choose  their  rulers  ; 
although,  according  to  the  superstition  of  the  age,  he 
more  probably  countenanced  the  belief  that  Henry  was 
a  Saint,  and  that  he  was  restored  by  the  direct  interposi- 
tion of  Heaven. 

But  one  would  think  he  must  have  been  at  his  wits' 
en.-l  when,  in  the  spring  of  the  following  year,  Edward 
IV.  landed  at  Ravenspurg,  gained  the  battle  of  Barnet, 
and,  after  the  murder  of  Henry  VI.  and  the  Prince  of 
Wales,  was  again  on  the  throne,  without  a  rival.  Billing 
does  seem  to  have  found  great  difficulty  in  making  his 
peace.  Though  he  was  dismissed  from  his  office,  it  was 
allowed  to  remain  vacant  about  a  twelvemonth,  during 
which  time  he  is  supposed  to  have  been  in  hiding.  But 
he  had  vowed  that,  whatever  changes  might  take  place 
on  the  throne,  he  himself  should  die  Chief  Justice  of  the 
King's  Bench  :  and  he  contrived  to  be  as  good  as  his  word. 

By  his  own  representations,  or  the  intercession  of 
friends,  or  the  hope  of  the  good  services  he  might  yet 
render  in  getting  rid  of  troublesome  opponents,  the 
King  was  induced  to  declare  his  belief  that  he  who  had 
sat  on  the  trials  of  Walker  and  Burdet  had  unwillingly 

1  The  teste  is  "  apud  Westmonasterium,  9  Oct.  49  Henry  III."— Pat.  Roll, 
m.  1 8. 


I473-J  JOHN    BILLING.  157 

submitted  to  force  during  the  late  usurpation ;  and,  on 
the  1 7th  of  June,  1472,  a  writ  passed  the  Great  Seal,  by 
which  his  Majesty  assigned  "  his  right  trusty  and  well- 
beloved  Sir  John  Billing,  Knight,  as  Chief  Justice  to  hold 
pleas  before  his  Majesty  himself."1 

For  nearly  nine  years  after,  he  continued  in  the  pos- 
session of  his  office,  without  being  driven  again  to  change 
his  principles  or  his  party.  One  good  deed  he  did,  which 
should  be  recorded  of  him — in  advising  Edward  IV.  to 
grant  a  pardon  to  an  old  Lancastrian,  Sir  John  Fortes- 
cue.  But  for  the  purpose  of  reducing  this  illustrious 
Judge  to  the  reproach  of  inconsistency,  which  he  knew 
made  his  own  name  a  by-word,  he  imposed  a  condition 
that  the  author  of  DE  LAUDIBUS  should  publish  a  new 
treatise,  to  refute  that  which  he  had  before  composed, 
proving  the  right  of  the  House  of  Lancaster  to  the 
throne ;  and  forced  him  to  present  the  petition  in  which 
he  assures  the  King  "  that  he  hath  so  clearly  disproved 
all  the  arguments  that  have  been  made  against  his  right 
and  title  that  now  there  remaineth  no  color  or  mat- 
ter of  argument  to  the  hurt  or  infamy  of  the  same  right 
or  title  by  reason  of  any  such  writing,  but  the  same  right 
and  title  stand  now  the  more  clear  and  open  by  that  any 
such  writings  have  been  made  against  them."9 

There  are  many  decisions  of  Chief  Justice  Billing  on 
dry  points  of  law  to  be  founded  in  the  YEAR-BOOKS,  but 
there  is  only  one  other  trial  of  historical  importance 
mentioned  in  which  he  took  any  part,  and  it  is  much  to 
be  feared  that  on  this  occasion  he  inflamed,  instead  of 
soothing,  the  violent  passions  of  his  master,  with  whom 
he  had  become  a  special  favorite. 

Edward  IV.,  after  repeated  quarrels  and  reconciliations 
with  his  brother,  the  Duke  of  Clarence,  at  last  brought 
him  to  trial,  at  the  bar  of  the  House  of  Lords,  on  a 
charge  of  high  treason.  The  Judges  were  summoned  to 
attend  ;  and  Lord  Chief  Justice  Billing  was  their  mouth- 
piece. We  have  only  a  very  defective  account  of  this 
trial,  and  it  would  appear  that  nothing  was  proved 
against  the  first  prince  of  the  blood,  except  that  he  had 
complained  of  the  unlawful  conviction  of  Burdet,  who 

1  Pat.  Roll,  ii  Ed.  IV.,  p.  I.  m.  24  ;  Dugd.  Chron.  Ser. 
*  Rot.  Parl.  vi.  26.  69. 


158  REIGN    OF    EDWARD    IV.  [1478. 

had  been  in  his  service,  that  he  had  accused  the  King 
of  dealing  in  magic,  and  had  cast  some  doubts  on  his 
legitimacy, — that  he  had  induced  his  servants  to  swear 
that  they  would  be  true  to  him,  without  any  reservation 
of  their  allegiance  to  their  Sovereign, — and  that  he  had 
surreptitiously  obtained,  and  preserved,  an  attested  copy 
of  an  act  of  parliament,  passed  during  the  late  usurpa- 
tion, declaring  him  next  heir  to  the  crown  after  the  male 
issue  of  Henry  VI.  •  The  Duke  of  Buckingham  presided 
as  High  Steward,  and  in  that  capacity  ought  to  have  laid 
down  the  law  to  the  Peers  ;  but,  to  lessen  his  respon-r 
sibility,  he  put  the  question  to  the  Judges,  "  Whether 
the  matters  proved  against  the  Duke  of  Clarence  amount- 
ed, in  point  of  law,  to  high  treason  ?"  Chief  Justice 
Billing  answered  in  the  affirmative.  Therefore,  a  unan- 
imous verdict  of  GUILTY  was  given  ;  and  sentence  of 
death  was  pronounced  in  the  usual  form.  I  dare  say 
Billing  would  not  have  hesitated  in  declaring  his  opinion 
that  the  beheading  might  be  commuted  to  drowning  in 
a  butt  of  malmsey  wine  ;  but  this  story  of  Clarence's  exit, 
once  so  current,  is  now  generally  discredited,  and  the  be- 
lief is,  that  he  was  privately  executed  in  the  Tower,  ac- 
cording to  his  sentence.1 

Lord  Chief  Justice  Billing  enjoyed  the  felicitous  fate 
accorded  to  very  few  persons  of  any  distinction  in  those 
times, — that  he  never  was  imprisoned — that  he  never  was 
in  exile — and  that  he  died  a  natural  death.  In  the  spring 
of  the  year  1482,  he  was  struck  with  apoplexy,  and  he 
expired  in  a  few  days- -fulfilling  his  vow — for  he  remain- 
ed to  the  last  Chief  Justice  of  the  King's  Bench,  after  a 
tenure  of  office  for  seventeen  years,  in  the  midst  of  civil 
war  and  revolutions. 

He  amassed  immense  wealth,  but,  dying  childless,  it 
went  to  distant  relations,  for  whom  he  could  have  felt  no 
tenderness.  Notwithstanding  his  wordly  prosperity,  few 
would  envy  him.  He  might  be  feared  and  flattered,  but 
he  could  not  have  been  beloved  or  respected,  by  his  con- 
temporaries ;  and  his  name,  contrasted  with  those  of 
Fortescue  and  Markham,  was  long  used  as  an  imperson- 
ation of  the  most  hollow,  deceitful,  and  selfish  qualities 
which  can  disgrace  mankind. 

1  Rot.  Par.  vi.  193,  194   195,  174. 


1482.]  JOHN    HUSSEY.  159 

Sir  JOHN  HUSSEY,1  who  succeeded  him,  was  Chief 
Justice  during  four  reigns,  ever  preserving  a  fair  char- 
acter; for,  being  a  mere  lawyer,  he  devoted  himself 
exclusively  to  the  duties  of  his  office ;  and  he  was  pro- 
moted to  the  highest  honors  of  his  profession  without 
mixing  in  any  political  contest. 

He  was  the  younger  son  of  a  Lincolnshire  family  of 
respectable  station,  but  small  means ;  and  he  had  con- 
siderable difficulties  to  struggle  with  in  early  life.  But 
he  was  endowed  with  much  energy,  perseverance,  and 
love  of  law.  His  favorite  manual  was  the  REGISTRUM 
BREVIUM  ;  and  Littleton's  celebrated  treatise  on  TEN- 
URES (destined  to  be  commented  on  by  COKE)  being 
now  completed,  and  handed  about  in  MS.,  he  copied  it 
with  his  own  hand,  and  he  is  said  to  have  committed  it 
to  memory. 

His  progress  at  the  bar  was  rapid  ;  and  in  1472,  on  the 
restoration  of  Edward  IV.  he  was  made  Attorney-Gen- 
eral.2 He  had  to  prosecute  a  good  many  Lancastrians  ; 
but  the  proceedings  were  less  bloody  than  might  have 
been  expected,  and,  without  displeasing  the  King,  he 
gained  some  credit  for  moderation  and  humanity.  He 
had  a  most  painful  duty  to  perform  in  conducting  the 
impeachment  of  the  Duke  of  Clarence  for  treason ;  but 
he  had  no  concern  in  advising  this  proceeding,  and  he  is 
not  supposed  in  any  part  of  it  to  have  exceeded  the  line 
of  his  professional  duty.  If  the  sentence  of  beheading 
was  changed  to  drowning  in  malmsey,  he  must  have 
been  consulted  about  it ;  but  there  is  no  record  of  his 
opinion  on  this  delicate  question. 

It  seems  strange  to  us  that  he  should  afterwards  have 
taken  the  degree  of  the  coif;  but  then,  and  long  after- 
wards, King's  Serjeants  had  precedence  of  the  Attorney 
and  Solicitor-General  on  all  occasions ;  and  all  other 
Serjeants  claimed  the  like  precedence,  except  in  conduct- 
ing the  King's  business.  Hussey,  therefore,  although 
Attorney-General,  to  add  to  his  dignity  was,  in  the 
year  1478,  called  Serjeant,  with  ten  others,  and  gave  a 

1  Often  spelled  Hussee. 

*  His  patent,  which  is  extant,  contained  the  words  still  introduced  into 
the  patent  of  the  Attorney-General :  "  Cum  potestate  deputandi  Clericos  ac 
officiarios  sub  se  in  qualibet  Curia  de  recordo." — Pat.  n  Edio.  IV.  p.  I.  m. 
28. 


ioo  REIGN    OF    RICHARD    III.  [1483. 

grand  feast  to  the  King,  the  Lord  Mayor  and  Aldermen 
of  London,  all  the  Judges,  and  many  of  the  nobility. 

On  the  death  of  Lord  Chief  Justice  Billing,  Sir  Wil- 
liam Hussey,  who  had  now  for  ten  years  ably  filled  the 
office  of  Attorney-General,  was  appointed  to  succeed 
him,  with  the  increased  salary  of  140  marks  a  year.1 
There  is  sometimes  great  disappointment  when  a  very 
eminent  counsel 'is  raised  to  the  bench;  but  all  who 
mention  Hussey's  name  concur  in  giving  him  a  high 
character  for  judicial  excellence.  Without  any  improper 
compliances,  he  continued  to  enjoy  court  favor,  as  well 
as  the  respect  of  the  public  ;  and  it  was  not  apprehended 
that  his  tenure  of  office  could  be  exposed  to  any  peril, 
the  King  being  a  much  younger  man  than  himself,  with 
seeming  vigorous  health.  The  constitution  of  Edward, 
however,  had  been  undermined  by  licentious  indul- 
gences, and  he  was  suddenly  carried  off  while  yet  only 
in  the  forty-first  year  of  his  age. 

Hussey  was  supposed  to  be  in  great  jeopardy,  as 
Richard  Duke  of  Gloucester,  made  Protector,  was  ex- 
pected to  fill  the  high  offices  of  the  law  with  instruments 
adapted  to  the  unprincipled  purposes  which  he  was 
suspected  to  entertain  ;  but  this  extraordinary  man, 
ruthless  in  the  commission  of  deeds  of  blood,  bad  the 
sagacity  to  perceive  that  he  would  facilitate  his  ascent 
to  supreme  power  by  the  reputation  of  a  regard  for  .the 
pure  administration  of  justice.  Therefore,  having,  in 
the  name  of  the  young  King,  delivered  the  Great  Seal 
to  the  virtuous  John  Russell,  he  reappointed  Sir  William 
Hussey  Chief  Justice  of  the  King's  Bench.* 

In  Easter  and  Trinity  Terms  following,  we  learn  from 
the  YEAR  BOOKS  that  Hussey  presided  in  that  court,  as 
the  representative  of  the  infant  Sovereign. 

On  the  26th  of  June  following,  the  Protector  changed 
his  own  title  to  that  of  King;  and  that  very  same  day, 
when  he  had  proceeded  from  Baynard's  Castle  to  West- 
minster, and  had  been  proclaimed,  having  experienced 
the  popularity  arising  from  the  appointment  of  able  and 

1 "  Will.  Husec  constit.  Capitalis  Justic.  T.  R.  apud  West.  7  Maii."— 
Pat.  21  Edw.  IV.  "Idem  Will,  habet  CXL  marcas  annuas  sibi  concessas 
pro  statu  suo  decentius  manutenendo.  T.  R.  apud  Westm.  12  Junii."— 
Pat.  21  Edw.  IV.  p.  2.  m.  6. 

«  Pat.  I  Ed.  V.  m.  2. 


1485.]  WILLIAM    HUSSEY.  161 

upright  judges,  he  caused  a  writ  to  pass  the  Great  Seal 
whereby  "  Richard  III.  by  the  grace  of  God  King  of 
England  and  France,  Lord  of  Ireland,  &c.,  assigned  his 
right  trusty  and  well-beloved  Sir  William  Hussey, 
Knight,  his  Chief  Justice,  to  hold  pleas  in  his  court 
before  him."1 

The  Chief  Justice  may  be  blamed  for  acquiescing  in 
this  usurpation ;  but  we  must  remember  that  he  had  no 
concern  in  bringing  it  about, — that  plausible  reasons 
had  been  brought  forward  to  make  out  the  illegitimacy 
of  the  sons  of  Edward  IV., — that  no  danger  was  as  yet 
apprehended  for  their  lives, — and  that  Richard's  claim 
had  been  sanctioned  by  the  City  of  London  and  by  the 
will  of  the  nation. 

As  the  new  King  chose  to  get  rid  of  Hastings,  Rivers, 
Buckingham,  and  the  other  grandees  who  were  obnox- 
ious to  him,  by  summary  violence  rather  than  judicial 
murder,  the  Chief  Justice  was  not  exposed  to  any  diffi- 
culty in  acting  under  his  authority;  and  he  continued 
till  after  the  battle  of  Bosworth,  amidst  insurrections 
and  civil  war,  calmly  to  adjust  the  private  rights  of  the 
suitors  who  came  before  him.  Instead  of  putting  on  a 
coat  of  mail  taken  from  the  King's  armory,  like  Sir  John 
Fortescue,  he  declared  that  it  became  him  to  be  seen  by 
the  public  only  in  the  scarlet  robe,  lined  with  white 
minever,  he  had  received  from  the  King's  wardrobe. 

Henry  VII.,  who  had  a  deep  dislike  to  all  whom  he 
knew  or  suspected  to  be  Yorkists,  was  much  inclined  to 
cashier  Chief  Justice  Hussey  as  he  had  done  Lord  Chan- 
cellor John  Russell ;  but,  after  a  month's  consideration, 
came  to  the  conclusion  that  his  loyalty  might  be  safely 
trusted  to  any  king  de  facto,  and  accordingly  reappointed 
him  in  the  usual  form.*  The  Lancastrian  Sovereign  had 
no  reason  to  repent  the  confidence  he  reposed  in  the 
Yorkist  Chief  Justice,  whose  scruples  were,  no  doubt, 
soothed  by  the  approaching  royal  marriage  and  the 
promised  union  of  the  Roses. 

When  Parliament  met,  the  Chief  Justice  was  of  essen- 

1  26th  June,  Pat.  I  Ric.  III.  p.  i.  m.  12. 

1  Henry  dated  his  reign  from  22nd  of  Angust,  1485,  and  Hussey's  new 
writ  was  tested  2Oth  September  following.     "  Will.  Husee,  miles,  constitutes 
Capitalis  Justic.  T.  R.  apud  Westm.  I  Hen.  VII.  p.  I.  m.  22." 
I — n 


1 62  REIGN    OF    RICHARD    III.          [1485— 

tial  service  in  removing  difficulties  which  presented 
themselves  in  the  way  of  legislation.  In  the  first  place, 
Henry  himself  had  been  attainted  by  an  act  passed  in 
the  preceding  reign,  and,  instead  of  mounting  a  throne, 
and  explaining  the  reasons  for  summoning  the  two 
Houses, — according  to  the  letter  of  the  law,  he  was  liable 
to  lose  his  life  on  the  scaffold.  Nor  could  this  act  of 
attainder  be  reversed  in  the  usual  form,  as  the  king, 
while  under  attainder  (it  was  suggested)  could  not  law- 
fully exercise  any  function  of  royalty.  The  question 
being  put  to  the  Judges,  Hussey  assembled  them  in  the 
Exchequer  Chamber,  and  induced  them  all  to  agree  in 
this  ingenious  solution  of  the  problem  that  "  the  descent 
of  the  crown  of  itself  takes  away  all  defects  and  disabil- 
ities arising  from  attainder,  and  therefore  that  the  act  of 
attainder  must  be  considered  as  already  virtually  re- 
versed." 

Next,  it  was  ascertained  that  more  than  half  the 
Peers  who  were  summoned,  and  a  great  many  repre- 
sentatives returned  to  the  House  of  Commons,  had 
been  attainted  in  the  same  manner ;  and  the  question 
was,  whether  their  attainder  could  be  treated  as  a  nullity, 
on  the  ground  that  Richard  III.,  who  gave  the  royal 
assent  to  it,  was  a  usurper?  Hussey  being  consulted, 
prudently  answered,  "that  it  would  be  of  dangerous  ex- 
ample to  suffer  those  who  ought  to  observe  a  law  to 
question  the  title  of  the  Sovereign  under  whom  the  law 
had  been  enacted,  and  that  the  attainted  peers  and  com- 
moners ought  not  to  take  their  seats  in  either  house  till 
their  attainder  had  been  reversed  by  a  new  act  of  parlia- 
ment assented  toby  the  king  who  now  is."  All  the  Judges 
concurred  in  this  opinion,  of  which  Henry  made  dexter- 
ous use  by  obtaining  the  famous  statute,  indemnifying 
all  who  act  in  obedience  to  the  king  de  facto? 

Hussey  continued  Chief  Justice  of  the  King's  Bench 
under  Henry  VII.  for  a  period  of  ten  years,  when  he 
expired  full  of  days  and  of  honors.  He  assisted  in  re- 
modeling the  Court  of  Star  Chamber,  occasionally  sat 
there  as  a  Judge,  but  none  of  its  sentences  are  charge- 
able with  excessive  severity  in  his  time.  He  left  no 

1  Roll  ParL  I  Henry  VIL  ;  I  Parl.  Hist.  450 ;  Lord  Bacon's  Hist.  Henry 
VII. 


I495-]  JOHN    FINEUX.  163 

issue  behind  him  ;  and  having  given  away  much  in  char- 
ity while  he  lived,  he  disposed  of  the  residue  of  his 
fortune  for  pious  uses,  which  in  the  following  age  were 
reckoned  superstitious. 

.  The  next  Chief  Justice  of  the  King's  Bench  was  SIR 
JOHN  FlNEUX,  of  whom,  although  he  presided  in  that 
court  twenty-eight  years,  I  find  little  of  good  or  of  evil. 
The  office  of  Chancellor,  held  successively  by  Morton, 
Wareham,  Wolsey,  and  More,  now  gained  such  an  as- 
cendancy that  the  Common  Law  Judges  occupied  but  a 
small  space  in  the  public  eye,  and  their  names  are  seldom 
connected  with  events  of  historical  interest.  But  even 
Fineux  has  had  biographers,  and  they  divide  his  career 
into  three  portions  of  twenty-eight  years  each.  He  was 
quite  idle  for  twenty-eight  years,  during  which  he  spent 
a  fair  estate  at  -Swenkfield  in  Kent,  inherited  by  him 
from  his  ancestors;  he  then  took  to  the  study  of  the 
law,  in  which  he  made  great  proficiency,  and  at  the  end 
of  twenty-eight  years  he  was  made  a  Judge.  But  I  find 
nothing  more  memorable  recorded  of  him  than  that  he 
had  a  house  in  Canterbury,  in  each  window  of  which 
was  to  be  seen  his  motto,  "  Miscricordias  Domini  cantabo 
in  czternum" 

Rivaling  his  immediate  predecessor  in  posthumous 
piety,  he  left  for  the  good  of  his  soul  all  his  property  to 
St.  Augustine's  Priory,  in  Canterbury, — a  monk  of  which 
wrote  a  treatise  in  his  praise,  describing  him  as  "  Vir 
prudentissimus,  genere  insignis,  justitia  prseclarus,  pietate 
refertus,  humanitate  splendidus,  et  charitate  fcecundiis."1 

He  died  in  Michaelmas  Term,  in  the  seventeenth  year 
of  the  reign  of  Henry  VIII. 

1  See  Fuller's  Worthies :  Kent. 


CHAPTER    V. 

CHIEF    JUSTICES     TILL    THE    APPOINTMENT    OF    CHIEF 
JUSTICE  POPHAM  BY   QUEEN  ELIZABETH. 

WE  know   more   of   the   next   Chief  Justice,  SIR 
JOHN  FlTZJAMES,  but  very  little  to  his  credit. 
Of  obscure  birth,  and  not  brilliant  talents,  he 
made  his  fortune  by  his  great  good  humor,  and  by  being 
at  college  with  Cardinal  Wolsey.     It  is  said  that  Fitz- 
james,  who  was  a  Somersetshire  man,  kept  up  an  inti- 
macy with  Wolsey  when  the  latter  had  become  a  village 
parson  in  that  county ;  and  that  he  was  actually  in  the 
brawl  at  the  fair  when  his  reverence,  having  got  drunk, 
was  set  in  the  stocks  by  Sir  Amyas  Paulet.1 

While  Wolsey  tried  his  luck  in  the  Church  with  little 
hope  of  promotion,  Fitzjames  was  keeping  his  terms  in 
the  Inns  of  Court  ;  but  he  chiefly  distinguished  himself 
on  gaudy  days,  by  dancing  before  the  Judges,  playing 
the  part  of  "Abbot  of  Misrule,"  and  swearing  strange 
oaths, — especially  by  St.  Gillian,  his  tutelary  saint.  His 
agreeable  manners  made  him  popular  with  the  "  Read- 
ers "  and  "  Benchers  ;"  and  through  their  favor,  although 
very  deficient  in  "  moots"  and  "bolts,"  he  was  called  to 
the  outer  bar.  Clients,  however,  he  had  none,  and  he 
was  in  deep  despair,  when  his  former  chum — having  in- 
sinuated himself  into  the  good  graces  of  the  stern  and 
wary  old  man,  Henry  VII.,  and  those  of  the  gay  and  li- 
centious youth,  Henry  VIII. — was  rapidly  advancing  to 
greatness.  Wolsey,  while  Almoner,  and  holding  subor- 
dinate offices  about  the  Court,  took  notice  of  Fitzjames, 
advised  him  to  stick  to  the  profession,  and  was  able  to 
throw  some  business  in  his  way,  in  the  Court  of  Wards 
and  Liveries, — 

'  Laves  of  Chancellors,  i.  444. 


1519—1523-]  JOHN    FITZ JAMES.  165 

"  Lofty  and  sour  to  them  that  loved  him  not ; 
But  to  those  men  that  sought  him,  sweet  as  summer." 

Fitzjames  was  devotedly  of  this  second  class ;  and  was 
even  suspected  to  assist  his  patron  in  'pursuits  which 
drew  upon  him  Queen  Catharine's  censure  : — 

"  Of  his  own  body  he  was  ill,  and  gave 
The  clergy  ill  example." 

For  these  or  other  services  the  Cardinal,  not  long 
after  he  wrested  the  Great  Seal  from  Archbishop  Ware- 
ham,  and  had  all  legal  patronage  conferred  upon  him, 
boldly  made  Fitzjames  Attorney  General,  notwithstand- 
ing loud  complaints  from  competitors  of  his  inexperience 
and  incapacity. 

The  only  state  trial  which  he  had  to  conduct  was  that 
of  the  unfortunate  Stafford,  Duke  of  Buckingham,  who, 
having  quarreled  with  Wolsey,  and  called  him  a  "  butch- 
er's cur,"  was  prosecuted  for  high  treason  before  the 
Lord  High  Chancellor  and  Court  of  Peers  on  very  frivo- 
lous grounds.  Fitzjames  had  little  difficulty  in  procur- 
ing a  conviction  ;  and  although  the  manner  in  which  he 
pressed  the  case  seems  shocking  to  us,  he  probably  was 
not  considered  to  have  exceeded  the  line  of  his  duty ; 
and  Shakspeare  makes  Buckingham,  returning  from 
Westminster  Hall  to  the  Tower,  exclaim, — 

.     .     .     .     "  I  had  my  trial, 

And,  must  needs  say,  a  noble  one  ;  which  makes  me 
A  little  happier  than  my  wretched  father."1 

The  result  was,  at  all  events,  highly  satisfactory  to 
Wolsey,  who,  in  the  beginning  of  the  following  year, 
created  Fitzjames  a  Puisne  Judge  of  the  Court  of  King's 
Bench,  with  a  promise  of  being  raised  to  be  Chief  Jus- 
tice as  soon  as  there  should  be  a  vacancy.9  Sir  John 
Fineux,  turned  of  eighty,  was  expected  to  drop  every 
term,  but  held  on  four  years  longer.  As  soon  as  he  ex- 
pired, Fitzjames  was  appointed  his  successor.3  Wolsey 
still  zealously  supported  him,  although  thereby  incurring 
considerable  obloquy.  It  was  generally  thought  the 
new  Chief  was  not  only  wanting  in  gravity  of  moral 
character,  but  that  he  had  not  sufficient  professional 
knowledge  for  such  a  situation.  His  highest  quality  was 

1  Henry  VIII.  act  ii.  sc.  I  ;  I  St.  Tr.  287 — 298. 

*  Pat  13  Henry  VIII.  p.  2.  3  Pat.  17  Henry  VIII.  Rot.  I. 


1 66  REIGN    OF    HENRY    VIII.  [1529. 

discretion,  which  generally  enabled  him  to  conceal  his 
ignorance,  and  to  disarm  opposition.  Fortunately  for 
him,  the  question  which  then  agitated  the  country,  re- 
specting the  validity  of  the  King's  marriage  with  Kath- 
erine  of  Aragon,  was  considered  to  depend  entirely  on 
the  canon  law,  and  he  was  not  called  upon  to  give  any 
opinion  upon  it.  He  thus  quietly  discharged  the  duties 
of  his  office  till  Wolsey's  fall. 

But  he  then  experienced  much  perplexity.  Was  he  to 
desert  his  patron,  or  to  sacrifice  his  place  ?  He  had  an 
exaggerated  notion  of  the  King's  vengeful  feelings. 
The  Cardinal  having  not  only  been  deprived  of  the 
Great  Seal,  but  banished  to  Esher,  and  robbed  of  almost 
the  whole  of  his  property  under  process  of  pramunire, 
while  an  impeachment  for  treason  was  still  threatened 
against  him, — the  Chief  Justice  concluded  that  his  utter 
destruction  was  resolved  upon,  and  that  no  one  could 
show  him  any  sympathy  without  sharing  his  fate.  There- 
fore, instead  of  going  privately  to  visit  him,  as  some  old 
friends  did,  he  joined  in  the  cry  against  him,  and  assisted 
his  enemies  to  the  utmost.  Wolsey  readily  surrendered 
all  his  private  property,  but  wished,  for  the  benefit  of  his 
successors,  to  save  the  palace  at  Whitehall,  which  be- 
longed to  the  see  of  York,  being  the  gift  of  a  former 
archbishop.  A  reference  was  then  made  to  the  Judges, 
"  whether  it  was  not  forfeited  to  the  Crown  ?"  when  the 
Chief  Justice  suggested  the  fraudulent  expedient  of  a 
fictitious  recovery  in  the  Court  of  Common  Pleas, 
whereby  it  should  be  adjudged  to  the  King  under  a 
superior  title.  He  had  not  the  courage  to  show  himself 
in  the  presence  of  the  man  to  whom  he  owed  every- 
thing;  and  Shelley,  a  Puisne  Judge,  was  deputed  to 
make  the  proposal  to  him  in  the  King's  name.  "  Mas- 
ter Shelley,"  said  the  Cardinal,  "  ye  shall  make  report  to 
his  Highness  that  I  am  his  obedient  subject,  and  faithful 
chaplain  and  bondsman,  whose  royal  commandment  and 
request  I  will  in  no  wise  disobey,  but  most  gladly  fulfill  and 
accomplish  his  princely  will  and  pleasure  in  all  things, 
and  in  especial  in  this  matter,  inasmuch  as  the  fathers  of 
the  law  all  say  that  I  may  lawfully  do  it.  Therefore  I 
charge  your  conscience,  and  discharge  mine.  Howbeit, 
I  pray  you  show  his  Majesty  from  me  that  I  most 


i529-]  JAMES    FITZJAMES.  167 

humbly  desire  his  Highness  to  call  to  his  most  gracious 
remembrance  that  there  is  both  Heaven  and  Hell." 

This  answer  was,  no  doubt,  reported  by  Shelley  to  his 
brethren  assembled  in  the  Exchequer  Chamber,  although, 
probably,  not  to  the  King ;  but  it  excited  no  remorse  iu 
the  breast  of  Chief  Justice  Fitzjames,  who  perfected  the 
machinery  by  which  the  town  residence  of  the  Arch- 
bishops of  York  henceforth  was  annexed  to  the  Crown, 
and  declared  his  readiness  to  concur  in  any  proceedings 
by  which  the  proud  ecclesiastic,  who  had  ventured  to 
sneer  at  the  reverend  sages  of  the  law,  might  be  brought 
to  condign  punishment. 

Accordingly,  when  parliament  met,  and  a  select  com- 
mittee of  the  House  of  Lords  was  appointed  to  draw 
up  articles  of  impeachment  against  Wolsey,  Chief  Jus- 
tice Fitzjames,  although  only  summoned  like  the  other 
judges,  as  an  assessor,  was  actually  made  a  member  of 
the  committee,  joined  in  their  deliberations,  and  signed 
their  report.1  Some  of  the  Articles  drawn  by  him  indi- 
cate a  pre-existing  envy  and  jealousy,  which  he  had 
concealed  by  flattery  and  subserviency  : 

"  XVI.  Also  the  said  Lord  Cardinal  hath  hindered  and 
undone  many  of  your  poor  subjects  for  want  of  dispatch- 
ing of  matters,  for  he  would  no  man  should  meddle  but 
himself;  insomuch  that  it  hath  been  affirmed,  by  many 
wise  men,  that  ten  of  the  most  wisest  and  most  expert 
men  in  England  were  not  sufficient  in  convenient  time  to 
order  the  matters  that  he  would  retain  to  himself;  and 
many  times  he  deferred  the  ending  of  matters  because 
that  suitors  should  attend  and  wait  upon  him,  whereof 
he  had  no  small  pleasure." — "  XX.  Also  the  said  Lord 
Cardinal  hath  examined  divers  and  many  matters  in  the 
Chancery  after  judgment  thereof  given  at  the  common 
law,  in  subversion  of  your  laws." — "  XXVI.  Also  when 
matters  have  been  near  at  judgment  by  process  at  your 

1  It  appears  very  irregular  to  us,  that  Sir  Thomas  More,  the  Chancellor, 
should  have  sat  upon  the  committee,  and  acted  as  Chairman,  for,  although 
Speaker  by  virtue  of  his  office,  he  was  not  a  member  of  the  House,  and 
was  only  entitled  to  put  the  question  ;  yet  he  signed  the  report  before  the 
Duke  of  Norfolk,  the  first  peer  of  the  realm,  or  the  Duke  of  Suffolk,  the 
King's  brother-in-law.  In  early  times  the  committee  on  a  bill  was  not  con- 
sidered necessarily  a  proceeding  of  the  House,  and  sometimes  a  bill  was 
"committed  to  the  AUomey  and  Solicitor  General." 


i68  REIGN    OF    HENRY     VIII.  [1530. 

common  law,  the  same  Lord  Cardinal  hath  not  only  given 
and  sent  injunctions  to  the  parties,  but  also  sent  for  your 
Judges,  and  expressly  by  threats  commanding  them  to 
defer  the  judgment,  to  the  evident  subversion  of  your 
laws  if  the  Judges  would  so  have  ceased." — "  XXXVII. 
Also  he  hath  divers  times  given  injunction  to  your  ser- 
vants, that  have  been  before  him  in  the  Star  Chamber, 
that  they,  nor  other  for  them,  should  make  labor,  by  any 
manner  of  way,  directly  or  indirectly,  to  your  Grace,  to 
obtain  your  gracious  favor  and  pardon  ;  which  was  a  pre- 
sumptuous intent  for  any  subject." 

The  authority  of  the  Chief  Justice  gave  such  weight  to 
the  Articles  that  they  were  agreed  to  by  the  Lords  nemine 
contradicente ;  but  his  ingratitude  and  tergiversation 
caused  much  scandal  out  of  doors,  and  he  had  the  morti- 
fication to  find  that  he  might  have  acted  an  honorable 
and  friendly  part  without  any  risk  to  himself,  as  the 
King,  retaining  a  hankering  kindness  for  his  old  favorite, 
not  only  praised  the  fidelity  of  Cavendish  and  the  Car- 
dinal's other  dependents  who  stuck  by  him  in  adversity, 
but  took  Cromwell  into  favor,  and  advanced  him  to  the 
highest  dignities,  pleased  with  his  gallant  defense  of  his 
old  master:  thus  the  articles  of  impeachment  (on  which, 
probably,  Fitzjames  had  founded  hopes  of  the  Great  Seal 
for  himself)  were  ignominiously  rejected  in  the  House 
of  Commons.1 

The  recreant  Chief  Justice  must  have  been  much 
alarmed  by  the  report  that  Wolsey,  whom  he  had  aban- 
doned, if  not  betrayed,  was  likely  to  be  restored  to  power, 
and  he  must  have  been  considerably  relieved  by  the  cer- 
tain intelligence  of  the  sad  scene  at  Leicester  Abbey  in 
the  following  autumn,  which  secured  him  for  ever  against 
the  fear  of  being  upbraided  or  punished  in  this  world  ac- 
cording to  his  deserts. 

However,  he  had  now  lost  all  dignity  of  character,  and 
henceforth  he  was  used  as  a  vile  instrument  to  apply  the 
criminal  law  for  the  pleasure  of  the  tyrant  on  the  throne, 
whose  relish  for  blood  soon  began  to  display  itself,  and 
became  more  eager  the  more  it  was  gratified. 

Henry  retaining  all  the  doctrines  of  the  Roman  Catho- 
lic religion  which  we  Protestants  consider  most  objection- 

1  I  Parl.  Hist.  492. 


<534-]  JOHN    FITZ JAMES.  169 

able,  but  making  himself  Pope  of  England  in  place  of  the 
Bishop  of  Rome,  laws  were  enacted  subjecting  to  the  pen- 
alties of  treason  all  who  denied  his  supremacy  ;  and  many 
of  these  offenders  were  tried  and  condemned  by  Lord 
Chief  Justice  Fitzjames,  although  he  was  suspected 
of  being  in  his  heart  adverse  to  all  innovation  in  re- 
ligion. 

I  must  confine  myself  to  the  most  illustrious  victims 
sacrificed  by  him — Fisher,  Bishop  of  Rochester,  and  Sir 
Thomas  More.  Henry,  not  contented  with  having  them 
attained  of  misprision  of  treason,  for  which  they  were 
siffering  the  sentence  of  forfeiture  of  all  their  property 
and  imprisonment  during  life,  was  determined  to  bring 
them  both  to  the  block ;  and  for  this  purpose  issued  a 
special  commission  to  try  them  on  the  capital  charge  of 
having  denied  his  supremacy.  The  Lord  Chancellor  was 
first  commissioner;  but  it  was  intended  that  the  respon- 
sibility and  the  odium  should  chiefly  rest  on  the  Lord 
Chief  Justice  Fitzjames,  who  was  joined  in  the  commis- 
sion along  with  several  other  common  law  judges  of  in- 
ferior rank. 

The  case  against  the  Bishop  of  Rochester  rested  on 
the  evidence  of  Rich,  the  Solicitor-General,  who  swore  he 
had  heard  the  prisoner  say,  "  I  believe  in  my  conscience, 
and  by  my  learning  I  assuredly  know,  that  the  King 
neither  is,  nor  by  right  can  be,  supreme  head  of  the 
Church  of  England  ;"  but  admitted  that  this  was  in  a 
confidential  conversation,  which  he  had  introduced  by 
declaring  that  "  he  came  from  the  King  to  ask  what  the 
Bishop's  opinion  was  upon  this  question,  and  by  assuring 
him  that  it  never  should  be  mentioned  to  any  one  ex- 
cept the  King,  and  that  the  King  had  promised  he  nevei 
should  be  drawn  into  question  for  it  afterwards."  The 
prisoner  contending  that  he  was  not  guilty  of  the  capital 
crime  charged  for  words  so  spoken,  the  matter  was  re- 
ferred to  the  Judges  : — 

"Lord  Chief  Justice  Fitzjames,  in  their  names,  de- 
clared '  that  this  message  or  promise  from  the  King  to 
the  prisoner  neither  did  nor  could,  by  rigor  of  law,  dis- 
charge him  ;  but  in  so  declaring  of  his  mind  and  con- 
science against  the  supremacy — yea,  though  it  were  at  the 
King's  own  request  or  commandment — he  committed 


170  REIGN    OF    HENRY     VIII.  [1534. 

treason  by  the  statute,  and  nothing  can  discharge  him 
from  death  but  the  King's  pardon.'  " 

Bishop  of  Rochester. — "  Yet  I  pray  you,  my  lords,  con- 
sider that  by  all  equity,  justice,  worldly  honesty,  and 
courteous  dealing,  I  cannot,  as  the  case  standeth,  be 
directly  charged  therewith  as  with  treason,  though  I  had 
spoken  the  words  indeed,  the  same  not  being  spoken 
maliciously,  but  in  the  way  of  advice  or  counsel  when  it 
was  required  of  me  by  the  King  himself ;  and  that  favor 
the  very  words  of  the  statute  do  give  me,  being  made 
only  against  such  as  shall  '  maliciously  gainsay  the  King's 
supremacy,'  and  none  other ;  wherefore,  although  by 
rigor  of  law  you  may  take  occasion  thus  to  condemn  me, 
yet  I  hope  you  cannot  find  law,  except  you  add  rigor  to 
that  law,  to  cast  me  down,  which  herein  I  have  not  de- 
served." 

Fitzjames,  C.  J. — "All  my  brethren  are  agreed  that 
'  maliciously '  is  a  term  of  art  and  an  inference  of  law, 
not  a  qualification  of  fact.  In  truth,  it  is  a  superfluous 
and  void  word  ;  for  if  a  man  speak  against  the  King's 
supremacy  by  any  manner  of  means,  that  speaking  is  to 
be  understood  and  taken  in  law  as  malicious." 

Bishop  of  Rochester. — "If  the  law  be  so,  then  it  is  a 
hard  exposition,  and  (as  I  take  it)  contrary  to  the  mean- 
ing of  them  that  made  the  law,  as  well  as  of  ordinary 
persons  who  read  it.  But  then,  my  Lords,  what  says 
your  wisdom  to  this  question,  '  Whether  a  single  testi- 
mony may  be  admitted  to  prove  me  guilty  of  treason, 
and  may  it  not  be  answered  by  my  negative?'  Often 
have  I  heard  it  said,  that  to  overcome  the  presumption 
from  the  oath  of  allegiance  to  the  King's  Majesty,  and 
to  guard  against  the  dire  consequences  of  the  penalties 
for  treason  falling  on  the  head  of  an  innocent  man,  none 
shall  be  convicted  thereof  save  on  the  evidence  of  two 
witnesses  at  the  least." 

Fitzjames,  C.  J. — "This  being  the  King's  case,  it  rests 
much  in  the  conscience  and  discretion  of  the  jury;  and 
as  they  upon  the  evidence  shall  find  it,  you  are  either  to 
be  acquitted  or  else  to  be  condemned." 

The  report  says  that  "  the  Bishop  answered  with 
many  more  words,  both  wisely  and  profoundly  uttered, 
and  that  with  a  mervailous  couragious,  and  rare  con- 


1 5  34-1  JAMES    FITZJAMES.  171 

stancy,  insomuch  as  many  of  his  hearers, — yea,  some  of 
the  Judges, — lamented  so  grievously,  that  their  inward 
sorrow  was  expressed  by  the  outward  teares  in  their 
eyes,  to  perceive  such  a  famous  and  reverend  man  in 
danger  to  be  condemned  to  a  cruell  death  upon  so 
weake  evidence,  given  by  such  an  accuser,  contrary  to 
all  faith,  and  the  promise  of  the  King  himself." 

A  packed  jury,  being  left  to  their  conscience  and  dis- 
cretion, found  a  verdict  of  GUILTY  ;  and  Henry  was  able 
to  make  good  his  saying,  when  he  was  told  that  the 
Pope  intended  to  send  Bishop  Fisher  a  cardinal's  hat, — 
"  'Fore  God,  then,  he  shall  wear*  it  on  his  shoulders,  for 
I  will  have  his  head  off." ' 

The  conduct  of  the  Chief  Justice  at  the  trial  of  Sir 
Thomas  More  was  not  less  atrocious.  After  the  case  for 
the  Crown  had  been  closed,  the  prisoner,  in  an  able  ad- 
dress to  the  jury,  clearly  proved  that  there  was  no  evi- 
dence whatever  to  support  the  charge,  and  that  he  was 
entitled  to  an  acquittal ;  when  Rich,  the  Solicitor-Gen- 
eral, was  permitted  to  present  himself  in  the  witness 
box,  and  to  swear  falsely,  that  "  having  observed,  in  a 
private  conversation  with  the  prisoner  in  the  Tower, 
'  No  parliament  could  make  a  law  that  God  should  not 
be  God,'  Sir  Thomas  replied,  '  No  more  can  the  Parlia- 
ment make  the  King  supreme  head  of  the  Church.'  ' 

A  verdict  of  GUILTY  was  pronounced  against  the  pris- 
oner, notwithstanding  his  solemn  denial  of  ever  having 
spoken  these  words.  He  then  moved,  in  arrest  of  judg- 
ment, that  the  indictment  was  insufficient,  as  it  did  not 
properly  follow  the  words  of  the  statute  which  made  it 
high  treason  to  deny  the  King's  supremacy,  even  sup- 
posing that  Parliament  had  power  to  pass  such  a  statute. 
The  Lord  Chancellor,  whose  duty  it  was,  as  head  of  the 
commission,  to  pass  the  sentence, — "  not  willing,"  says 
the  report,  "  to  take  the  whole  load  of  his  condemnation 
on  himself,  asked  in  open  court  the  advice  of  Sir  John 
Fitzjames,  the  Lord  Chief  Justice  of  England,  whether 
the  indictment  was  valid  or  no  ?" 

Fitzjames,  C.  J.— "  My  Lords  all,  by  St.  Gillian,  (for 
that  was  always  his  oath),  I  must  needs  confess  that  if 

1  St.  Tr.  395-408. 


172  REIGN    OF    HENRY    VIII.  [1536. 

the  act  of  parliament  be  not  unlawful,  then  the  indict- 
ment is  not,  in  my  conscience,  invalid." 

Lord  Chancellor. — "  Quid  adhuc  desideramus  testimo- 
nium  ?  Reus  est  mortis.  Sir  Thomas  More,  you  being, 
by  the  opinion  of  that  reverend  Judge,  the  Chief  Justice 
of  England,  and  of  all  his  brethren,  duly  convicted  of 
high  treason,  this  Court  doth  adjudge  that  you  be  car- 
ried back  to  the  Tower  of  London,  and  that  you  be 
thence  drawn  on  a  hurdle  to  Tyburn,  where  you  are  to 
be  hanged  till  you  are  half  dead,  and  then  being  cut 
down  alive  and  emboweled,  and  your  bowels  burnt  be- 
fore your  face,  you  are  to  be  beheaded  and  quartered, 
your  four  quarters  being  set  up  over  the  four  gates  of 
the  City,  and  your  head  upon  London  Bridge."1 

No  one  can  deny  that  Lord  Chief  Justice  Fitzjames 
was  an  accessory  to  this  atrocious  murder. 

The  next  occasion  of  his  attracting  the  notice  of  the 
public  was  when  he  presided  at  the  trials  of  Smeaton 
and  the  other  supposed  gallants  of  Anne  Boleyn.  Luck- 
ily for  him,  no  particulars  of  these  trials  have  come  down 
to  us,  and  we  remain  ignorant  of  the  arts  by  which  a 
conviction  was  obtained,  and  even  a  confession, — although 
there  is  every  reason  to  believe  that  the  parties  were  in- 
nocent. According  to  the  rules  of  evidence  which  then 
prevailed,  the  convictions  and  confessions  of  the  gallants 
were  to  be  given  in  evidence  to  establish  the  guilt  of  the 
unhappy  Queen,  for  whose  death  Henry  was  now  as  im- 
patient as  he  had  once  been  to  make  her  his  wife. 

When  the  Lord  High  Steward  and  the  Peers  as- 
sembled for  her  trial,  Fitzjames  and  the  other  Judges 
attended,  merely  as  assessors,  to  advise  on  any  point  of 
law  which  might  arise. 

I  do  not  find  that  they  were  consulted  till  the  verdict 
of  GUILTY  had  been  recorded,  and  sentence  was  to  be 
pronounced.  Burning  was  the  death  which  the  law  ap- 
pointed for  a  woman  attainted  of  treason  ;  yet,  as  Anne 
had  been  Queen  of  England,  some  Peers1  suggested  that 
it  might  be  left  to  the  King  to  determine  whether  she 
should  die  such  a  cruel  and  ignominious  death,  or  be  be- 
headed, a  punishment  supposed  to  be  attended  with  less 
pain  and  less  disgrace.  But  then  a  difficulty  arose, 

1 1  St.  Tr.  385-396. 


'539-1  JAMES    FITZJAMES.  173 

whether,  although  the  King  might  remit  all  the  atro- 
cities of  the  sentence  on  a  man  for  treason,  except 
beheading,  which  is  part  of  it,  he  could  order  a  person 
to  be  beheaded  who  was  sentenced  to  be  burnt.  A  so- 
lution was  proposed,  that  she  should  be  sentenced  by 
the  Lord  High  Steward  to  be  "  burnt  or  beheaded  at 
the  King's  pleasure;"  and  the  opinion  of  the  Judges 
was  asked,  "  whether  such  a  sentence  could  be  lawfully 
pronounced  ?" 

Fitzjames,  C.  %, — "  My  Lords,  neither  myself  nor  any 
of  my  learned  brothers  have  ever  known  or  found  in  the 
records,  or  read  in  the  books,  or  known  or  heard  of,  a 
sentence  of  death  in  the  alternative  or  disjunctive,  and 
incline  to  think  that  it  would  be  bad  for  uncertainty. 
The  law  delights  in  certainty.  Where  a  choice  is  given, 
by  what  means  is  the  choice  to  be  exercised  ?  And  if 
the  sheriff  receives  no  special  directions,  what  is  he  to  do  ? 
Is  sentence  to  be  stayed  till  special  directions  are  given 
by  the  King?  and  if  no  special  directions  are  given, 
is  the  prisoner,  being  attainted,  to  escape  all  punish- 
ment ?  Prudent  antiquity  advises  you  stare  super 
antiquas  vias ;  and  that  which  is  without  precedent  is 
without  safety." 

After  due  deliberation,  it  was  held  that  an  absolute 
sentence  of  beheading  would  be  lawful,  and  it  was  pro- 
nounced accordingly;  the  Court  being  greatly  com- 
forted by  recollecting  that  no  writ  of  error  lay,  and  that 
their  judgment  could  not  be  reversed.1 

Fitzjames  died  in  the  year  1539,  before  this  judgment 
served  as  a  precedent  for  that  upon  the  unfortunate 
Queen  Catherine  Howard ;  and  he  was  much  missed 
when  the  bloody  statute  of  the  Six  Articles  brought  so 
many,  both  of  the  old  and  of  the  reformed  faith,  on 
capital  charges  before  the  Court  of  King's  Bench. 

He  left  no  descendants;  but  Sir  John  Fitzjames,  de- 
scended from  his  brother,  was  a  friend  and  patron  of 
Fuller,  the  author  of  the  WORTHIES,  who,  therefore, 
writes  this  panegyric  on  the  Chief  Justice: — "There 
needs  no  more  be  said  of  his  merit,  save  that  King 

1  St.  Tr.  410-434  ;  Hall's  Henry  VIII.  foL  227  b. ;  Fox,  Mart.  u.  987  j 
Stow,  572  ;  Speed,  1014. 


174  REIGN    OF    HENRY     VIII.  [1523. 

Henry  VIII.  preferred  him,  who  never  used  dunce  or 
drone  in  church  or  state,  but  men  of  activity  and  ability. 
He  sat  above  thirteen  years  in  his  place,  demean- 
ing himself  so  that  he  lived  and  died  in  the  King's 
favor." 

Fitzjames,  although  not  considered  by  nature  cruel  or 
violent,  had  incurred  much  obloquy  by  his  ingratitude 
to  Cardinal  Wolsey,  and  by  his  sneaking  subserviency : 
insomuch  that  he  had  not  the  influence  over  juries  which 
was  desirable  for  obtaining  at  all  times  an  easy  convic- 
tion ;  and  Lord  Chancellor  Audley  suggested  the  expe- 
diency of  having  for  his  successor  a  man  of  fair  and 
popular  reputation,  who  at  the  same  time  would  be 
likely  to  make  himself  agreeable  to  the  King.  After 
the  office  of  Chief  Justice  of  the  King's  Bench  had 
been  kept  vacant  some  months,  it  was  filled  by  SIR  ED- 
WARD MONTAGU,  another  legal  founder  of  a  ducal  house 
still  flourishing. 

Although  he  owed  his  rise  entirely  to  his  own  exer- 
tions, he  was  of  an  ancient  race.  His  ancestor,  having 
come  over  with  the  Conquerer,  built  a  castle  on  the  top 
of  a  sharp  hill  in  Somersetshire,  and  was  thence  called 
"  Roger  de  Monte  acuto."  The  family  long  took  the 
surname  of  Montacute  ;  and  the  elder  branch,  till  it  be- 
came extinct  in  the  beginning  of  the  reign  of  Henry 
VI.,  for  several  generations  bore  the  title  of  Earl  of 
Salisbury.  The  Chief  Justice  was  the  younger  brother 
of  a  younger  brother  ;  a  junior  branch  of  the  family,  set- 
tling at  Hemington  in  Northamptonshire,  who  had 
gradually  changed  their  name  to  Montagu.  He  was 
born  at  Brigstock  in  that  county,  in  the  latter  end  of  the 
reign  of  Henry  VII.  Being  early  destined  to  the  pro- 
fession of  the  law,  which  had  become  the  highway  to 
wealth  and  honors,  he  was  sent  when  very  young  to 
study  at  an  Inn  of  Chancery,  and  in  due  time  was  en- 
tered a  member  of  the  Society  of  the  Middle  Temple. 
Here  he  is  said  to  have  made  himself,  by  indefatigable 
industry,  complete  master  of  all  the  learning  of  the 
common  law,  not  neglecting  more  liberal  pursuits,  which 
the  example  of  Sir  Thomas  More  had  made  fashionable 
among  professional  men.  I  do  not  find  any  statement 
of  his  call  to  the  bar,  or  his  progress  in  business;  but  so 


IS3I.J  EDWARD    MONTAGU.  175 

highly  was  he  esteemed  for  learning  by  the  Benchers, 
that  he  was  appointed  by  them  "  Autumn  Reader  "  in 
1524,  and  "  Double  Reader"  a  few  years  afterwards. 

Enterprising  lawyers  now  began  to  get  on  by  politics ; 
and  when  a  parliament  was  summoned  in  1523,  Montagu 
contrived  to  be  returned  as  a  member  of  the  House  of 
Commons.  But  this  speculation  had  nearly  ended  fatally 
to  him.  Like  Sir  Thomas  More  and  Lord  Bacon,  he  in- 
discreetly made  a  maiden  speech  against  granting  a  sup- 
ply. This  was  the  parliament  in  which  Sir  Thomas 
More  was  chosen  Speaker,  and  in  which  Wolsey  had 
gone  down  to  the  House  of  Commons  to  complain  of 
the  tardy  progress  of  the  money  bill.  Montagu,  think- 
ing that  he  had  found  a  favorable  opportunity  for  his 
dObut,  made  a  violent  harangue  on  the  breach  of  privi- 
lege which  had  been  committed.  But  the  next  day  he 
was  sent  for  by  the  King,  who  thus  addressed  him : 
"  Ho  !  will  they  not  let  my  bill  pass  ?"  The  young 
patriot,  in  a  great  fright,  knelt  down  ;  when  Henry,  lay- 
ing his  hand  on  his  head,  added,  "  Get  my  bill  to  pass 
by  twelve  of  the  clock  to-morrow,  or  else  by  two  of  the 
clock  to-morrow  this  head  of  yours  shall  be  off."  In  an 
instant  was  Montagu  cured  of  his  public  spirit,  and  he 
became  a  steady  courtier  for  the  rest  of  his  days. 

When  he  "  put  on  the  coif,"  or  "  took  upon  himself 
the  degree  of  serjeant-at-law,"  he  gained  prodigious  ap- 
plause. A  call  of  Serjeants  in  those  times  was  an  event 
of  historical  importance,  by  reason  of  the  festivities  at- 
tending it,  and  of  its  marking  an  aera  in  the  annals  of 
Westminster  Hall.  The  chroniclers  celebrate  the  call 
of  Serjeants  which  included  Sir  Edward  Montagu  as  the 
most  splendid  on  record,  and  ascribe  its  success  in  no 
small  degree  to  his  liberality  and  taste.  The  feast  was 
held  in  Ely  House,  Holborn,  and  lasted  five  days  :  Fri- 
day, the  loth  of  November,  and  Saturday,  Sunday, 
Monday  and  Tuesday  following.  On  the  Monday,  which 
was  the  greatest  day,  King  Henry  and  Queen  Catherine 
dined  there,  with  all  the  foreign  Ambassadors,  all  the 
Judges,  the  Lord  Mayor  and  Aldermen  of  London,  all 
the  King's  Court,  and  many  of  the  nobility.  "  It  were 
tedious,"  says  Dugdale,  "  to  set  down  the  preparation  of 
fish,  flesh,  and  other  victuals  spent  in  this  feast,  and 


176 


REIGN    OF    HENRY    VIII. 


[1540- 


would  seem  almost  incredible,  and  wanted  little  of  a 
feast  at  a  coronation."1 

This  must  have  been  almost  the  last  occasion  of  the 
King  being  seen  in  public  with  his  first  wife  ;  and  he 
would  have  been  much  obliged  to  the  Serjeants  if  they 
could,  by  their  cantrips,  have  put  Anne  Boleyn  in  her 
place ;  but  they  contrived  to  satisfy  him  highly,  and  he 
declared,  on  his  departure,  that  "  the  entertainment  had 
been  much  to  his  good  liking."  He  took  great  notice 
of  Serjeant  Montagu,  whose  manners  were  particularly 
agreeable,  and  invited  him  to  the  palace  at  Westminster. 
From  that  time,  there  was  a  personal  intimacy  between 
them,  and  Montagu  was  set  down  as  a  royal  favorite 
marked  for  promotion. 

However,  year  after  year  passed  away,  without  any 
change  in  his  position,  and  he  thought  himself  doomed 
to  perpetual  neglect,  when,  without  having  ever  been 
Attorney  or  Solicitor-General,  or  King's  Sergeant,  or 
Puisne  Judge,  he  found  himself  one  day  Chief  Justice  of 
England. 

For  a  short  time  he,  no  doubt,  was  pleased  in  observ- 
ing the  joy  of  his  wife  and  children  ;  in  receiving  the 
congratulations  of  his  friends  ;  in  listening  to  a  panegyric 
on  his  learning  and  his  virtues  from  Lord  Chancellor 
Audley  ;  in  appointing  his  officers ;  in  giving  good  places 
to  his  dependents  ;  in  putting  on  his  scarlet  robes,  and 
throwing  the  collar  of  S.  S.  round  his  neck ;  in  witness- 
ing the  worshipful  homage  paid  to  him  when  he  took  his 


1  However,  he  gives  a  few  items  as  a  specimen, 
show  how  things  had  risen  in  a  century :" 

"  There  were  brought  to  the  slaughter-house, — 

24  great  bicfes,  at 

100  fat  muttons,  at 

5 1  great  veales,  at 

34  porkes,  at  . 

90  pigs,  at 

Capons  of  Greece,  10  dozen  at 

Capons  of  Kent,  9  dozen  and  6,  at 

Cocks  of  Grose,  7  dozen  and  9,  at 

Cocks  course,  14  dozen,  at  8</.  and  3</.  a-picce. 

Pullets,  the  best 

Pigeons,  37  dozen,  at 

Swans,  13  dozen. 

Larks,  340  dozen,  at 


"  noting  the  prices  to 


£ 

S. 

d. 

i 

6 

8 

the  piece. 

0 

2 

10 

0 

o 

4 

S 

" 

o 

3 

g 

tc 

o 

0 

6 

• 

o 

i 

8 

• 

o 

i 

0 

M 

0 

0 

8 

M 

0 

0 

2 

ob. 

o 

0 

10  a  dozen. 

008 


Dug.  Or.  Jur.  p.  128  ;  Stow's  Survey  of  London,  426. 


1546.]  EDWARD    MONTAGU.  177 

seat  on  the  bench  ;  in  attending  divine  service  at  St. 
Paul's,  and  afterwards  dining  with  the  Lord  Mayor  of 
London  ;  in  hearing  discourse  addressed  to  him,  inter- 
larded with  "  My  Lord"  and  "  Your  Lordship  ;"  in  lim- 
ners soliciting  leave  to  draw  his  portrait ;  in  seeing  how 
the  Bar  not  only  nodded  submissively  to  his  law,  but 
laughed  vociferously  at  his  jests ;  in  encountering  the 
envy  and  jealousy  of  his  enemies  and  his  rivals ;  and  in 
finding  that  his  small  salary  was  amply  made  up  to  him 
from  the  fees,  gratuities,  and  piesents  which  flowed  in 
upon  him  from  all  quarters.  But  it  is  certain  that  these 
pleasures  soon  faded  away,  and  that  he  wished  himself 
again  a  sergeant-at-law,  quietly  and  drowsily  practicing 
in  the  Court  of  Common  Pleas.  Unfortunately  for  his 
comfort  he  had  a  conscience, — and  he  was  unable  either 
to  obey  its  dictates  or  to  silence  its  reproaches.  A 
Chief  Justice  in  those  days,  long  to  relish  his  elevation, 
must  have  been  made  of  sterner  stuff  than  Sir  Edward 
Montagu. 

He  professed,  and,  I  believe,  sincerely,  an  inclination 
for  the  new  doctrines  of  religion  ;  but,  under  the  statute 
of  the  Six  ARTICLES,  he  was  often  called  upon  to  convict 
and  to  sentence  to  death  both  Papists  and  Protestants. 
He  was  still  more  annoyed  by  what  may  be  called  the 
extrajudicial  work  required  of  him.  When  Anne  of 
Cleves  was  to  be  divorced  because  her  person  after  the 
marriage  was  found  not  agreeable,  and  the  King  declared 
that  in  going  through  the  marriage  ceremony  he  had 
never,  in  his  own  mind,  given  his  consent  to  the  mar- 
riage, the  Chief  Justice  was  obliged  to  give  his  opinion 
that  the  marriage  had  not  been  duly  contracted  and 
ought  to  be  declared  null.  When  Cromwell,  for  nego- 
tiating this  marriage,  and  deceiving  the  King  as  to  the 
lady's  personal  charms,  was  to  lose  his  head,  the  Chief 
Justice  was  obliged  to  certify  to  the  House  of  Lords  that 
innocent  acts  which  he  had  done  with  the  King's  authority 
amounted  to  treason,  and  afforded  sufficient  ground  for 
passing  a  bill  of  attainder  against  him.  When  Queen 
Catharine  Howard,  who  certainly  had  been  guilty  of  in- 
continence before  her  marriage,  but  against  whom  there 
was  no  sufficient  evidence  of  such  misconduct  afterwards 
as  would  subject  her  to  the  pains  of  treason,  was  to  be 
i — 12. 


178  REIGN  OF  HENRY   VIII.  [1546. 

put  to  death  because  she  had  deceived  the  King  in  per- 
suading him  that  she  had  come  a  virgin  to  his  arms,  the 
Chief  Justice  was  obliged  to  answer  in  the  affirmative  a 
question  submitted  to  him,  "Whether,  as  the  accused 
party  was  a  Queen,  the  law  would  infer  that  she  had 
committed  adultery,  from  facts  which  in  the  case  of  a 
common  person  would  afford  no  such  inference?"1 

This  last  affair  seems  to  have  weighed  heavily  on  his 
mind  ;  he  thenceforth  openly  declared  that  he  was  tired 
of  his  dignity,  and  he  even  talked  of  resigning  it  and  re- 
tiring into  private  life.  But  he  was  tempted  to  remain 
by  large  grants  of  abbey  lands.  An  apologist  says,  "  In 
his  time,  though  the  golden  showers  of  abbey  lands  rained 
amongst  great  men,  it  was  long  before  he  would  open  his 
lap  (scrupling  the  acceptance  of  such  gifts),  and  at  last 
received  but  little  in  proportion  to  others  of  the  age."  * 
This  very  graphically  delineates  his  character.  He  would 
much  rather  have  gained  all  his  objects  by  honorable 
means, — but  he  could  not  resist  temptation,  although  sin 
was  followed  by  remorse.  In  truth,  he  partook  very 
largely  of  the  spoils  of  the  Church,  and,  in  spite  of  his 
unhappiness,  he  was  reluctant  to  renounce  not  only  the 
emoluments  of  office,  but  the  chance  of  further  aggran- 
disement. 

An  expedient  presented  itself,  of  which  he  eagerly 
availed  himself.  The  office  of  Chief  Justice  of  the  Com- 
mon Pleas  became  vacant  by  the  sudden  death  of  Sir 
John  Baldwin.  This  had  now  acquired  the  name  of  the 
"pillow,"  from  its  allowing  the  possessor  to  be  put  to 
sleep  by  the  somnolent  pleadings  of  the  Serjeants  who 
exclusively  practiced  there,  in  conducting  real  actions, 
without  any  excitement  from  criminal  or  political  trials. 
For  profit  it  was  superior  to  the  Chief  Justiceship  of  the 
King's  Bench  ;  and  most  of  those  who  had  the  good 
luck  to  lay  their  heads  upon  it,  when  taken  from  the  tu- 
mults of  the  bar,  remained  fully  contented  with  it  for 
life.  Yet,  being  inferior  in  point  of  rank,  an  etiquette 
had  prevailed  that  no  one  could  accept  it  who  had  been 
in  the  higher  situation  of  Chief  Justice  of  England.  Mon- 

1  He  answered  that  the  facts  put  to  him  hypothetically,  "  considering  the 
persons  implicated,  formed  a  satisfactory  presumption  that  adultery  had 
teen  committed."  *  Fuller. 


1546.]  THOMAS    BILLING.  179 

tagu  probably  had  some  scruples,  as  usual,  when  he  was 
about  to  do  an  improper  action  ;  but  if  he  had  any,  he 
soon  overcame  them,  fora  few  days  after  Baldwin's  death 
he  went  to  the  King,  and,  after  making  a  parade  of  his 
services,  and  his  loyalty,  and  his  extreme  desire  still  to 
be  of  service  to  his  Highness,  he  feigned  ill  health  and 
infirmity,  and  prayed  that  he  might  be  allowed  to  be 
Chief  Justice  of  the  Common  Pleas  instead  of  the  King's 
Bench.  Wriothesly,  a  rigorous  Roman  Catholic,  was 
then  Chancellor,  and  he  bore  no  good  will  to  Montagu, 
who  advocated  the  King's  supremacy,  and  was  a  grantee 
of  Church  property.  However,  he  thought  that  such  a 
character  would  be  less  mischievous  in  the  obscurer  place 
which  he  coveted,  and  by  his  advice  the  King  consented 
to  the  exchange.  Accordingly,  on  the  6th  Nov.,  1546, 
Montagu  was  superseded  as  Chief  Justice  of  the  King's 
Bench,  and  took  his  seat  as  Chief  Justice  of  the  Common 
Pleas.1 

Now  he  was  like  a  ship  that,  having  been  tossed  on  a 
stormy  ocean,  suddenly  enters  a  creek  where  the  winds 
are  stilled  and  the  waters  are  smooth.  He  might  feel 
some  mortification  when  he  saw  Richard  Lyster,  whom 
he  had  lately  snubbed  at  the  bar,  take  precedence  of 
him  in  judicial  processions  as  Lord  Chief  Justice  of  the 
King's  Bench ;  and  when  he  thought  that  his  decisions 
were  liable  to  be  reversed  by  the  caprice  of  that  court 
where  his  word  had  been  law ;  but  he  must  have  exulted 
in  experiencing  the  quiet  and  security  he  had  managed 
to  obtain, — in  soothing  his  conscience  by  resolutions  to 
repent  of  past  transgressions,  without  being  driven  to 
commit  new  ones, — and  in  thinking  that,  when  the 
golden  showers  of  abbey  lands  again  fell,  he  might  still 
^  open  his  lap. 

During  the  remainder  of  this  memorable  reign,  once, 
and  once  only,  he  was  in  danger  of  being  subjected  to 
the  like  perils,  pangs,  and  remorse  to  which  he  had  been 
exposed  when  Chief  Justice  of  the  King's  Bench.  The 
old  Duke  of  Norfolk,  having  become  obnoxious  to  the 
Seymours,  who  were  gaining  an  ascendency  at  Court, 

1  Pat.  37  Henry  VIII.  p.  18.  Fuller  remarks,  "A  descent  in  honor,  but 
ascent  in  profit, — it  being  given  to  old  age  rather  to  be  thrifty  than  ambi- 
tious." 


i8o  REIGN    OF    EDWARD     VI.  [1547 

was  under  prosecution  for  treason,  the  principal  charge 
against  him  being  that,  as  he  was  descended  from  the 
royal  family  through  a  female,  he  had  ever  since  his 
father's  death  quartered  on  his  shield  the  royal  arms  of 
England  with  a  difference.  The  two  Chief  Justices 
were  summoned  to  attend  his  examination  before  the 
Council,  and  it  was  expected  that  they  would  be  asked 
whether  this  pretension,  which  ought  to  have  been  de- 
cided by  the  College  of  Heralds,  amounted  to  a  com- 
passing of  the  King's  death  under  the  statute  of  25 
Edw.  III.  But,  luckily  for  the  consciences  of  the  Chief 
Justices,  the  Duke,  knowing  the  hopelessness  of  a  de- 
fense, and  hoping  to  soften  the  King  by  submission, 
voluntarily  subscribed,  in  their  presence,  a  formal  confes- 
sion of  his  guilt,  whereby  he  admitted  that  he  had  quar- 
tered the  royal  arms  in  the  manner  alleged,  which,  as  he 
knew,  by  the  laws  of  this  realm  amounted  to  high 
treason.  This  document  was  attested  by  the  two  Chief 
Justices  (Montagu  signing  after  Lyster1)  and  all  they 
could  be  blamed  for  was  that  they  did  not  caution  him 
against  such  an  indiscretion. 

As  soon  as  the  proceeding  had  been  completed  in  due 
form,  it  was  made  the  foundation  of  an  act  of  attainder, 
and  the  Duke  would  have  suffered  death  as  a  traitor  if 
there  had  not  been  an  opportune  demise  of  the  Crown 
early  in  the  morning  of  the  day  appointed  for  his  execu- 
tion. 

The  commission  of  Montagu  as  Chief  Justice  of  the 
Common  Pleas  was  renewed,  and  he  held  the  office  dur- 
ing the  whole  of  the  reign  of  Edward  VI.  Although  he 
had  been  named  one  of  Henry  VIII. 's  executors,  he 
long  contrived  to  steer  clear  of  the  violent  factions  by 
which  the  country  was  agitated.  But,  after  the  tragical 
end  of  both  the  Seymours,  Dudley,  Duke  of  Northum- 
berland, having  become  complete  master  of  the  king- 
dom, and  seeing  the  approaching  end  of  the  young 
King,  resolved  to  prolong  his  own  rule  by  defeating  the 
succession  of  the  Princess  Mary.  He  thought  that  the 
Chief  Justice  of  the  Common  Pleas  would  be  a  useful 
instrument  in  carrying  into  effect  the  project  he  had 
formed.  This  was  to  induce  the  dying  Edward  to  make 

1  St.  Tr.  458. 


I553-]  EDWARD    MONTAGU.  181 

a  will  disinheriting  his  sisters,  Mary  and  Elizabeth,  and 
leaving  the  crown  to  his  cousin,  Lady  Jane  Gray.  Of 
all  the  Judges  on  the  bench,  Montagu  was  considered  to 
have  the  fairest  character,  with  the  weakest  nerves ;  and, 
without  any  notice  of  the  business  to  be  debated,  he 
and  two  or  three  Puisnies,  over  whom  he  was  supposed 
to  have  influence,  were  summoned  to  attend  a  council  at 
Greenwich,  where  the  Court  then  lay.  Being  required 
to  prepare  a  will  for  the  King  to  the  effect  before  stated, 
he  was  thrown  into  greater  perplexity  than  he  had  ever 
experienced  when  Chief  Justice  of  the  King's  Bench  under 
Henry  VIII.  ;  and,  although  charged  to  obey  upon  his 
allegiance,  he  plucked  up  courage  to  refuse  till  he  should 
have  an  opportunity  to  look  into  the  acts  passed  for  reg- 
ulating the  succession,  and  to  consult  the  whole  of  his 
brethren.  The  more  he  considered  the  matter,  the  more 
he  was  frightened,  for  he  saw  that  what  he  was  asked  to 
do  was  not  only  contrary  to  law,  but  would  be  sure  to 
expose  him  to  the  penalties  of  treason.  Accordingly, 
at  a  council  held  two  days  after,  he  explained  that  by 
act  of  parliament  the  crown  was  entailed  on  the  Lady 
Mary  after  the  death  of  his  Highness  without  issue,  and 
that  nothing  short  of  an  act  of  parliament  could  alter 
this  destination.  But,  Northumberland  threatening  the 
utmost  violence  against  all  who  should  attempt  to 
thwart  his  inclination,  the  following  plan  was  resorted 
to — that  a  commission  should  pass  the  great  seal,  au- 
thorizing Montagu  to  draw  the  will  in  the  prescribed 
form ;  that  it  should,  when  drawn  and  executed  by  Ed- 
ward, be  signed  by  all  the  Judges  ;  and  that  a  pardon  at 
the  same  time  should  pass  the  great  seal  to  indemnify 
them  for  any  offense  against  the  law  which  they  might 
thereby  have  committed.  Thus  fortified,  Montagu  drew 
the  will,  and  under  it  the  Lady  Jane  Grey  was  pro- 
claimed Queen  of  England. 

He  waited  upon  her  when  she  came  from  Sion  House 
to  the  Tower  of  London  preparatory  to  her  coronation  ; 
but  he  was  one  of  the  first  to  desert  her  when  he  heard 
of  the  general  expression  of  loyalty  in  favor  of  Queen 
Mary. 

For  some  time  he  was  in  considerable  danger  of  a  cap- 
ital prosecution,  the  will  of  Edward  being  in  his  hand- 


1 52  ASIC??    OF    QUEEN    MARY.        [1546— 

writing,  and  a  report  being  spread  that  he  had  furnished 
the  arguments  in  law  by  which  an  attempt  had  been 
made  to  support  it.  He  was  arrested,  confined  in  the 
Tower,  and  subjected  to  repeated  examinations  ;  but 
Bishop  Gardyner,  now  Chancellor  and  Prime  Minister, 
was  convinced  that  he  had  acted  under  constraint,  and, 
while  others  expiated  on  the  scaffold  the  offense  in 
which  he  had  been  implicated,  after  six  weeks'  imprison- 
ment he  was  set  at  liberty,  being  punished  only  by  the 
loss  of  his  Chief  Justiceship,  by  a  fine  of  ;£iooo,  and  by 
the  surrender  of  some  abbey  lands  granted  to  him  at  the 
recommendation  of  the  Protector  Somerset. 

He  then  retired  to  his  country  house,  where  he  died 
on  the  loth  of  February,  1556-  He  was  buried  with  his 
ancestors  in  Hemington  church,  and  a  splendid  marble 
monument  was  there  erected  to  his  memory,  with  the 
following  semi-barbarous  inscription,  which,  if  prepared 
by  himself,  shows  that  he  did  not  concur  in  the  saying 
that  "  the  receiver  of  abbey  lands  can  have  no  faith  in 
prayers  for  the  dead." 

ORATE  PRO   ANIMA  EDWARDI   MOUNTAGU  MILITIS  NUPER  CAPITALIS 

JUSTIC.  DE  COMMUNI  BANCO  APUD  WESTM. 
"  Montacute  pater,  legum  jurisque  magister, 
O  Edwarde,  vale  !  quern  disciplina  severa 
Furit  et  improbatis  hominum  scelerata  timebat. 
Moribus  antiquis  vixisti,  pads  amator, 
Virtutis  rigidus  custos,  vitiique  flagellum. 
O  venerande  senex!  f.e  luxoriosa  juventus, 
Criminis  u'torem  metuens,  in  funere  gaudet. 
Patria  sed  meret,  sancto  spoliata  latore, 
Qui  vixit  justi  summus  defensor  et  sequL 
Hunc  tu  praeteriens  lector  defende  precando."1 

Having  been  thrice  married,  he  left  eight  sons  and 
nine  daughters,  for  all  of  whom  he  was  able  amply  to 
provide.  The  title  of  Duke  of  Montagu  bestowed 
upon  one  branch  of  his  descendants,  and  of  Earl  of 
Halifax  upon  another,  have  become  extinct,  but  the 
Duke  of  Manchester  and  the  Earl  of  Sandwich  are 
sprung  from  him  in  the  direct  male  line. 

The  next  five  persons  successively  appointed  to  the 
office  of  Chief  Justice  of  the  King's  Bench  (Sir  Richard 
Lyster,  9th  Nov.,  1546;  Sir  Roger  Cholmley,  2ist 
March,  1552;  Sir  Thomas  Bromley,  4th  Oct.,  1553; 

1  a  Bridge's  Northampton,  54 


1556.]  JAMES    DYER.  183 

Sir  William  Portmore,  nth  June,  1554;  and  Sir  Ed- 
ward Saunders,  8th  May,  1556)  were  neither  eminent  in 
their  profession  nor  connected  with  the  stirring  events 
of  the  times  in  which  they  lived.  I  shall  therefore  pass 
them  over  without  further  notice,  and  introduce  to  the 
reader  a  contemporary  Chief  Justice  of  the  Common 
Pleas,  to  whom  we  lawyers  still  look  up  with  much 
reverence — SIR  JAMES  DYER. 

I  myself  am  bound  particularly  to  honor  him  as  the 
first  English  lawyer  who  wrote  for  publication  "  Reports 
of  Cases  "  determined  in  our  municipal  courts, — being 
followed  by  a  long  list  of  imitators,  containing  my  hum- 
ble name.  To  show  the  respect  in  which  our  craft  was 
once  held,  and  to  excuse  myself  to  the  reader  for  intro- 
ducing a  Law  Reporter,  I  begin  with  some  Latin  lines, 
composed  by  his  editor  soon  after  his  death,  when  a 
huge  folio,  the  labor  of  thirty  years,  was  given  to  the 
world : — 

"CANDIDO  LECTORI  CARMEN. 

ECCE  per  assiduos  tandem  collecta  labores, 

Expectata  diu,  jam  monumenta  patent. 
Et  quse  ter  denos  vix  sunt  congesta  per  annos, 

En  uno  inclusit  pro  brevitate  libro. 
In  cujus  laudem,  satis  est  scripsisse  DlERUM, 

Patronoque  alio  non  obus  esse  reor. 
Cujus  nota  satis  doctrina,  potentia,  virtus, 

Cujus  juncta  gravi  cum  pietate  fides. 
Cujus  summus  honor,  cujus  veneranda  potestas, 

Semper  erunt  domini  signa  notaeque  sui. 
Ergo  vade  Liber,  primoque  in  fronte,  DlERUM 

Inscriptum  gestas,  hoc  duco  tutus  eris. 
Improba  ne  dubites  vani  convicia  vulgi, 

Sat  tibi  sit  tanti  gesta  fuisse  viri. 
Quern  nee  consumet  spatium  nee  longa  vetustas, 

Tempora  quern  rapient  nulla,  nee  ulla  dies  : 
Docte  DIERE  vale,  tua  fama  perennis  Olympo 

Vivet  ad  extremos  te  moriente  dies." 

I  may  not  flatter  myself  that  I  can  assist  in  fulfilling 
these  prophesies,  and  in  making  his  name  immortal ; 
but  I  can  easily  show  that  he  deserves  a  place  among 
the  Worthies  of  Westminster  Hall. 

He  was  descended  from  an  ancient  family  of  Somer- 
setshire, which  likewise  produced  Sir  Edward  Dyer, 
Chancellor  of  the  Garter  under  Queen  Elizabeth, — an 
eminent  poet,  as  well  as  an  accomplished  courtier,  and  a 


184  REIGN    OF    QUEEN    MARY.          [1537. 

very  formidable  competitor  with  the  Earl  of  Leicester 
and  Sir  Christopher  Hatton  for  the  favors  of  their  royal 
mistress. — James  Dyer  was  born  about  the  year  1512, 
and  was  the  second  son  of  Richard  Dyer,  who  had  a 
good  estate  at  Wincanton,  in  that  county.  Whetstones, 
the  rhyming  biographer,  who  celebrated  the  great  orna- 
ments of  the  reign  of  Elizabeth,  gives  us  this  account  of 
his  education  : — 

"  In  tender  yeares  he  was  to  learning  set 

And  vessels  long  their  seasoned  liquors  taste  : 
As  time  grew  on,  he  did  to  Oxford  get,    - 

And  so  from  thence  he  was  in  Strand  Inne^  plaste  ; 
But  him  with  fame  the  Middle  Temple  graste  : 
The  depth  of  lawe  he  searcht  with  painefull  toyle, 
Not  cunning  quirks  the  simple  man  to  spoyle."  * 

As  a  proof  of  the  early  genius  he  displayed  for  report- 
ing, we  are  told  by  prose  authoities  that  he  was  remark- 
able for  a  diligent  attendance  in  the  courts  of  law  every 
morning  from  seven  to  eleven,  with  his  note-book,  in 
which  he  took  down,  in  short-hand,  the  arguments  and 
judgments  in  all  important  cases  occurring  in  Westmin- 
ster Hall.  When  he  returned  to  his  chamber  after  sup- 
per, at  six  o'clock,  he  digested  and  abridged  his  notes 
into  a  lucid  report  of  each  case,  introducing  only  the 
facts  necessary  for  raising  the  point  of  law  determined, 
with  a  brief  statement  of  the  manner  in  which  it  was 
presented  by  the  counsel  to  the  "court,  and  the  opinion 
of  each  of  the  judges ; — improving  infinitely  upon  the 
YEAR-BOOKS,  which  generally  presented  a  confused  mass 
of  dialogue  between  the  counsel  and  the  judges, — the 
reader  often  being  left  in  doubt  whether  the  speaker 
stood  at  the  bar  or  sat  on  the  bench.  Hence  the 
admirable  reports  of  Lord  Chief  Justice  Dyer,  which 
were  afterwards  given  to  the  world,  and  hence  the 
valuable  labors  of  succeeding  reporters  on  the  same 
model. 

After  having  been  a  student  of  law  rather  more  than 
seven  years,  he  was  called  to  the  bar.  His  progress  there 
was  not  very  rapid,  for  both  his  parts  and  his  acquire- 
ments are  said  to  have  been  more  solid  than  brilliant. 

1  Then  an  Inn  of  Chancery  where  legal  studies  began. 
*  "  The  Life  and  Death  of  the  good  Lord  Dyer,"  reprinted  in  1816  at  the 
Auchinlack  press. 


I553-]  JAMES    DYER.  !8S 

He  avoided  all  evil  arts  to  promote  the  success  either  of 
others  or  of  himself. 

"  He  with  much  care  his  clyents'  wrongs  redrest ; 

By  vertue  thus  he  clymede  above  the  rest, 
And  feared  no  fall  sith  merit  was  his  guide, 
When  reaching  heads  ofte  slip  in  cheifest  pride." l 

He  steadily  advanced  in  business  and  in  reputation,  in- 
somuch that  in  the  last  parliament  of  Edward  VI.  he  was 
returned  as  a  member  of  the  House  of  Commons ;  and  he 
was  elected  Speaker,  although  without  the  rank  of  Soli- 
citor-General, or  of  Sergeant,  usually  considered  neces- 
sary for  that  dignity.  We  have  no  particulars  of  his  per- 
formance, when,  being  presented  at  the  bar  of  the  House 
of  Lords,  he  prayed  that  the  privileges  of  the  Commons 
might  be  allowed, — for  the  Journals  merely  say  that  he 
made  "  an  ornate  oration  before  the  King."  On  account 
of  Edward's  declining  health,  the  parliament  sat  only 
one  month,4 — at  the  end  of  which,  Dyer  ceased  for  ever 
to  be  a  parliament  man  ;  and,  having  received  £100  for 
his  fee  as  Speaker,  he  was  probably  not  sorry  to  be  freed 
from  the  distraction  of  politics,  that  he  might  devote 
himself  exclusively  to  his  favorite  purpose. 

Immediately  after,  he  took  the  degree  of  Sergeant-at- 
Law ;  and,  as  he  had  warmly  espoused  the  Protestant 
side,  it  was  expected  that  he  would  soon  receive  high 
promotion  ;  but  his  hopes  seemed  extinguished  by  the 
premature  death  of  the  Protestant  King,  and  the  acces- 
sion of  the  bigoted  Mary. 

He  had  no  concern  in  the  plot  for  putting  the  Lady 

Jane  Grey  on  the  throne  ;  and,  as  a  sound  lawyer,  he  had 

-•  denied  the  power  of  Edward  to  change  the  succession  to 

the  crown  by  his  will,  contrary  to  an  act  of  parliament  as 

well  as  to  the  common  law  of  the  realm. 

It  was  probably  for  that  reason  that,  although  he  did 
not,  like  many  others,  now  change  his  religion,  he  was 
honored  with  the  appointment  of  Queen's  Sergeant.  I 
presume  that,  without  any  formal  reconciliation  to  the 
Church  of  Rome,  he  must,  after  the  example  of  Sir 
Nicholas  Bacon,  Sir  William  Cecil,  and  the  Princess 
Elizabeth  herself, — good  Protestants  in  their  hearts. — 
have  conformed,  during  this  reign,  to  the  dominant  wor- 

1  Whetstones.  •  I  Parl.  Hist.  599-602. 


i86  RATGN    OF    QUEEN    MARY.          [1554. 

ship  ;  for  Lord  Chancellor  Gardyner  could  not  have  re- 
commended to  the  royal  favor  a  notorious  schismatic. 

Dyer  certainly  enjoyed  the  confidence  of  Mary's  Gov- 
ernment ;  and  he  was  employed  as  one  of  the  counsel  to 
prosecute  Sir  Nicholas  Throckmorton,  charged  with  high 
treason,  as  an  accomplice  in  Sir  Thomas  Wyat's  rebel- 
lion.1 On  this  occasion  he  met  with  a  signal  defeat ;  the 
prisoner,  who  was  a  man  of  great  ingenuity  and  elo- 
quence, having  the  almost  unprecedented  good  luck,  in 
those  ages,  to  obtain  a  verdict  of  acquittal.  We  have  a 
very  minute  report  of  the  proceedings,  showing  that  as 
yet  there  were  no  rules  whatever  as  to  procedure  or  evi- 
dence on  criminal  trials.  Much  of  the  time  was  occupied 
with  questioning  the  prisoner,  and  instead  of  any  formal 
speeches  being  delivered,  a  conversation  was  kept  up  be- 
tween the  judges,  the  jury,  the  counsel,  and  the  prisoner, 
in  the  midst  of  the  reading  of  written  confessions  and  de- 
positions. When  the  jury  had  been  sworn,  thus  spoke 
Sir  Nicholas : — 

"  And  it  may  please  you,  Master  Sergeant,  and  the 
others  my  masters  of  the  Queen's  learned  counsel,  albeit 
you  are  appointed  to  give  evidence  against  me,  yet  I 
pray  you  remember  I  am  not  alienate  from  you,  but  that 
I  am  your  Christian  brother.  You  ought  to  consider 
that  you  are  not  so  privileged  but  you  have  a  duty  of 
God ;  which,  if  you  exceed,  will  be  grievously  required 
at  your  hands.  It  is  lawful  for  you  to  use  your  gifts 
which  I  know  God  hath  largely  given  you,  as  your  learn- 
ing, art,  and  eloquence,  so  as  thereby  you  do  not  seduce 
the  minds  of  the  simple  and  unlearned  jury.  For,  Mas- 
ter Sergeant,  I  know  how  by  persuasions,  enforcements, 
prescriptions,  applying,  implying,  inferring,  conjecturing, 
deducing  of  arguments,  wresting  and  exceeding  the  law, 
the  circumstances,  the  depositions,  and  confessions,  un- 

1  It  has  been  supposed  that  he  acted  as  one  of  the  judges  on  this  occasion, 
because  his  name  is  mentioned  in  the  commission  (see  life  of  Dyer,  prefixed 
to  the  last  edition  of  his  Reports) ;  but  it  is  mentioned  with  that  of  the  At- 
torney-General, and  it  always  has  been,  and  still  is,  the  custom,  in  commis- 
sions of  oyer  and  terminer,  to  name  the  King's  counsel  as  commissioners  ; 
this  nomination  not  preventing  them  from  practicing  as  advocates  before 
their  brother  commissioners.  I  have  often  thought  of  the  difficulty  which 
would  arise  if  they  were  to  be  guilty  of  a  contempt  of  court,  and  deserve  to 
be  committed, — since,  for  anything  I  know,  they  might  at  any  moment  seat 
themselves  on  the  bench  and  act  as  judges. 


I554-J  JAMES    DYER.  187 

learned  men  maybe  enhanced  to  think  and  judge  things 
indifferent,  or  at  the  worst  but  oversights,  to  be  great 
treasons.  Almighty  God,  by  the  mouth  of  his  prophet, 
doth  conclude  such  advocates  to  be  cursed,  saying, 
*  Cursed  be  he  that  doth  his  office  craftily,  corruptly,  and 
maliciously.'  And  consider,  also,  that  my  blood  shall  be 
required  at  your  hands,  and  punished  in  you  and  yours  to 
the  third  and  fourth  generation.  You  and  the  Justices, 
when  called  in  question,  excuse  such  erroneous  doings  by 
the  verdict  of  twelve  men :  but  I  assure  you  such  purga- 
tion serveth  you  as  it  did  Pilate,  and  you  will  wash  your 
hands  of  my  bloodshed  as  Pilate  did  of  Christ's.  And 
now  to  your  matter." 

An  attempt  was  first  made  to  induce  the  prisoner  to 
confess,  without  any  evidence  being  given  against  him, 
and  he  is  thus  interrogated : 

"  How  say  you,  Throgmorton,  '  Did  not  you  send 
Winter  to  Wyat,  and  devise  that  the  Tower  of  London 
should  be  taken?' — A.  'I  confess  I  did  say  to  Winter 
that  Wyat  was  desirous  to  speak  with  him.'  Q.  '  Yea, 
sir,  and  you  devised  together  of  taking  the  Tower  of 
London,  and  of  other  great  treasons.' — A.  '  No,  I  did  not 
so  :  prove  it.'  ' 

Dyer  afterwards  said, — "  And  it  may  please  you,  my 
Lords,  and  you,  my  masters  of  the  jury,  to  prove  that 
Throckmorton  is  a  principal  doer  in  this  rebellion,  many 
things  are  to  be  declared, — amongst  others, — Crofte's 
confession.  He  saith,  Sir  Nicholas,  that  he  and  you, 
and  your  accomplices,  did  many  times  devise  about  the 
whole  matters,  and  he  made  you  privy  to  all  his  deter- 
minations." Throckmorton  :  "  Master  Crofte  is  yet  liv- 
ing, and  is  here  this  day ;  how  happeneth  it  he  is  not 
brought  face  to  face  to  justify  this  matter?  Either  he 
said  not  so,  or  he  will  not  abide  by  it."  Dyer :  "For 
the  better  confirmation  of  all  the  treasons  objected 
against  the  prisoner,  and  therein  to  prove  him  guilty, 
you  of  the  jury  shall  hear  the  Duke  of  Suffolk's  depo- 
sition, who  was  a  principal,  and  hath  suffered  accord- 
ingly." 

"  Then,"  says  the  report,  "  the  said  Sergeant  read  the 
Duke's  confession  touching  the  prisoner,  amounting  to 
this  effect,  That  the  Lord  Thomas  Grey  did  inform  the 


1 88          REIGN    OF    QUEEN   ELIZABETH.      [1557 

said  Duke  that  Sir  Nicholas  Throckmorton  was  privy  to 
the  whole  devices" 

Throckmorton :  "  But  what  doth  the  principal  author 
of  this  matter  say  against  me  ;  I  mean  the  Lord  Thomas 
Grey,  who  is  yet  living?  Why  is  not  his  deposition 
brought  against  me,  for  so  it  ought  to  be  if  he  can  say 
anything?  Neither  the 'Lord  Thomas  Grey  hath  said, 
can  say,  or  will  say  anything  against  me,  notwithstand- 
ing the  Duke's  confession  and  accusation,  or  he  should 
have  been  here  now.  The  Duke  doth  refer  only  to  what 
he  says  he  has  heard  from  the  Lord  Thomas." 

After  a  long  trial,  conducted  in  the  same  fashion,  the 
j  iry  very  properly  found  a  verdict  of  NOT  GUILTY, — 
for  which  they  were  imprisoned  and  heavily  fined.1  This 
acquittal  was  a  great  mortification  to  the  Government, 
although  they  had  the  consolation  of  convicting  Sir 
John  Throckmorton,  Sir  Nicholas's  brother,  on  exactly 
the  same  evidence. 

Dyer  was  rewarded  for  his  zeal  (which  was  not  con- 
sidered as  having  led  him  at  all  beyond  the  line  of  his 
professional  duty)  by  being  made  a  Puisne  Justice  of  the 
Court  of  Common  Pleas ;  and,  in  the  following  year,  he 
was  promoted  to  be  a  Puisne  Justice  of  the  Court  of 
King's  Bench. 

He  turned  out  to  be  a  consummate  Judge,  although 
he  had  been  only  an  indifferent  advocate.  He  was  al- 
lowed to  be  by  far  the  best  lawyer  of  his  time ;  he  was 
above  all  suspicion  of  bribery,  when  judicial  corruption 
was  by  no  means  rare ;  he  evinced  extraordinary  sound- 
ness of  intellect,  as  well  as  acuteness  ;  and,  caring 
nothing  about  literature,  and  very  little  about  the  re- 
ligious disputes  which  agitated  the  public,  he  was  inde- 
fatigably  industrious  in  the  discharge  of  his  official  duties. 

Queen  Elizabeth,  who  was  above  all  things  anxious  to 
have  the  judgment-seat  properly  filled,  the  very  day 
after  her  accession  to  the  throne  renewed  his  commis- 
sion as  a  Puisne  Justice,  bringing  him  back  to  the  Com- 
mon Pleas ;  and  shortly  afterwards  she  made  him  Chief 
Justice  of  that  court,  in  the  room  of  Sir  Anthony 
Brown,  whom,  from  being  Chief  Justice,  she  degraded 
to  be  a  Puisne,  and  who  was  contented  to  serve  under  a 
1  St.  Tr.  869-902. 


IS59-]  JAMES    DYER.  189 

Chief  allowed   by  himself,  as  well  as  the  rest  of  the 
world,  to  be  greatly  his  superior.1 

"  From  roome  to  roome2  he  slept  by  tme  degrees, 

And  mounts  at  length  to  soveraigne  justice'  place, 
Where  long  he  sat  Chief  Judge  of  Comon  Pleas, 
And  to  say  with  truth  he  sat  with  justice  gnite 
Whose  sacred  will  was  written  in  his  face  ; 
Settled  to  heare  but  very  slow  to  speake, 
Till  either  part,  at  large,  his  minde  did  breake. 

"  And  when  he  spake  he  was  in  speech  reposde  ; 

His  eyes  did  search  the  simple  sutor's  harte  ; 
To  put  by  bribes  his  hands  were  ever  closde, 

His  processe  just  he  took  the  poor  man's  parte, 

He  rulde  by  lawe  and  listened  not  to  arte, 
These  foes  to  truthe — loove,  hate,  and  private  gaine, 
Which  most  corrupt,  his  conscience  could  not  stain  e."8 

Fuller  says,  "  Sir  James  Dyer  remained  Chief  Justice 
of  the  Court  of  Common  Pleas  twenty  years, — longer,  it 
my  eye  or  arithmetic  fail  me  not,  than  any  in  that  place 
before  or  after  him." 

But  as  no  criminal  or  political  cases  were  within  his 
jurisdiction,  and  he  mixed  so  little  with  any  thing 
beyond  its  strict  limits,  his  subsequent  career  is  less  in- 
teresting, although  it  excited  the  admiration  of  his  con- 
temporaries. 

He  still  employed  himself  in  digesting  notes  of  the 
most  important  cases  which  came  into  his  court,  or 
which,  on  account  of  their  difficulty,  were  adjourned 
into  the  Exchequer  Chamber  before  all  the  Judges.4 — 
His  "  Reports "  were  not  printed  till  after  his  death  ; 
but  he  had  prepared  them  for  publication,  and  they 
afford  a  stupendous  proof  of  his  industry  and  learning. 
Although  now  of  little  use  to  tell  us  what  the  law  is, 

1  If  this  precedent  had  been  followed,  it  might  have  been  very  useful  for 
Westminster  Hall ;  but  however  superior  a  puisne  mav  have  been  esteemed 
to  the  chief,  I  am  not  aware  of  any  other  instance  of  their  changing  places, 

*  "  Roome"  in  old  English  was  used  for  office.  3  Whetstones. 

4  This  course  was  very  common  then,  and  it  continued  to  be  occasionally 
resorted  to  till  the  reign  of  George  IV.,  when  it  was  entirely  superseded  by 
the  establishment  of  a  new  system  of  courts  of  error,  by  which  the  decisions 
of  each  of  the  superior  courts  of  common  law  were  subjected  to  the  review 
of  a  tribunal  consisting  of  the  judges  of  the  two  others.  Another  remnant 
of  the  Aula  Regis  was,  the  reference  to  all  the  judges  of  questions  of  criminal 
law,  which  was  superseded  in  the  year  1848,  by  the  bill  I  had  the  honor  to 
introduce  for  establishing  a  court  of  appeal  from  courts  of  oyer  and  ter- 
ra iner,  and  from  the  quarter  sessions. 


190         REIGN    OF    QUEEN    ELIZABETH.    [1559. 

they  are  valuable  records  of  the  history  of  English  juris- 
prudence and  English  manners. 

We  have  a  case  illustrating  the  custom  of  the  mar- 
riage of  children  then  prevailing.  A  boy  of  the  age  of 
twelve  years  contracted  marriage  with  a  girl  of  sixteen, 
per  verba  de  prasenti ;  the  marriage  was  solemnized  in 
the  face  of  the  church,  and  the  married  pair  were  put 
into  bed  together.  The  husband  dying  a  few  days  after, 
the  widow  brought  a  writ  of  dower,  claiming  one-third 
of  his  lands.  The  heir  pleaded,  that  they  had  never 
been  joined  in  laivful  matrimony?  Her  counsel  cited  an 
authority  from  the  YEAR-BOOK  of  12  Richard  II. ,  where, 
in  a  writ  of  dower,  the  wife,  at  the  time  of  the  death  of 
him  who  was  supposed  her  husband,  was  only  of  the 
age  of  eleven  years ;  and  he  who  was  supposed  her  hus- 
band, of  the  age  of  ten  years  and  a  half;  and  judgment 
was  given,  that  she  should  recover  seizin  of  one-third  of 
her  husband's  lands.  On  the  other  side  it  was  argued, 
that  consent  only  constitutes  matrimony ;  that  here  the 
supposed  husband  had  not  reached  the  age  of  consent ; 
that,  by  all  the  authorities,  he  might  have  afterwards 
dissented  and  annulled  the  marriage  ;  and  that  the  sup- 
posed consummation  was  a  nullity  ;  a  dictum  of  a  learned 
judge  in  the  time  of  Edward  I.  was  relied  upon:  "A 
wife  shall  lose  dower,  if  her  lord  (scil.  her  husband)  die 
before  nine  years  of  age."  Thereupon,  a  writ  was 
directed  to  the  bishop  of  the  diocese,  to  certify  whether 
this  was  a  valid  marriage ;  and  he  returned  a  certificate, 
which  Dyer,  C.  J.,  and  Meade  and  Mounsen,  JJ.,  against 
the  opinion  of  Windham,  J.,  held  to  be  insufficient,  and 
the  action  was  abated.  But,  eight  years  after,  it  was 
revived,  and  a  writ  being  directed  to  the  successor  of 
the  former  bishop,  he  certified  that  "  the  demandant  is 
to  be  taken  for  a  lawful  wife  and  accoupled  in  lawful 
matrimony ;"  so  judgment  was  given  in  her  favor,  that 
she  was  entitled  to  dower,  on  the  ground  that  "  there 
had  been  espousals,  and  that  espousals  continue  always 
till  defeated  by  dissent ;  whereas  here,  there  had  been  no 
dissent,  and  at  the  time  of  the  husband's  death  the 
marriage  subsisted."* 

1  In  Norman-French,  "ne  unques  acccuples  en  loyal  matrimonie." 
*  Dyer,  Rep.  313  a,  368  b. 


I559-J  JAMES    DYER.  191 

In  Dyer's  time,  a  man  being  convicted  of  a  simple 
felony, — as  stealing  any  chattel  of  the  value  of  twelve 
pence, — if,  when  asked  why  he  should  not  be  sentenced 
to  die,  he  prayed  the  benefit  of  clergy,  the  book  con- 
taining the  "  neck  verse  "  was  put  into  his  hand  ;  and  if 
he  could  read,  he  was  discharged ;  but  if  he  could  not,  he 
was  hanged.1  A  question  arose  "  whether,  if  a  man,  who 
may  have  his  clergy  granted  in  case  of  felony,  prays  his 
book,  and,  in  fact,  cannot  read,  and  it  is  recorded  non 
legit  lit  clericus,  and,  being  respited  for  a  time,  he  learns 
to  read  before  he  is  executed,  he  shall  have  his  clergy, 
notwithstanding  the  record  ?"  The  matter  was  referred 
to  all  the  Justices  of  Assize  assembled  at  Sergeants'  Inn, 
and  it  was  resolved  in  favorem  vita  that  he  should  have 
his  clergy ;  "  for,"  said  Dyer,  "  he  should  have  had  it 
allowed  under  the  gallows  by  the  Year-Book  34  H.  6.  49 
a,  b,  pi.  16.,  if  the  judge  passed  by  there,  and  much 
more  here.  And  although  he  had  been  taught  and 
schooled  in  the  jail  to  know  letters  and  read,  that 
shall  help  him  for  his  life  ;  BUT  THE  JAILER  SHALL  BE 
PUNISHED  FOR  IT."* 

The  most  curious  cases  in  Dyer's  Reports  are  upon 
questions  respecting  "  villeinage  "  or  slavery.  It  is  not 
generally  known,  that,  down  to  the  reign  of  Queen 
Elizabeth,  there  were  in  England  both  "  villeins  in 
gross,"  or  slaves  that  might  have  been  sold  separately 
like  chattels,  and  "  villeins  regardant,"  or  slaves  attached 
to  particular  land,  with  which  they  were  transferred 
along  with  the  trees  growing  upon  it. — I  will  give  a  few 
examples  : — 

In  an  action  of  trespass  and  assault,  there  was  a  justi- 
fication by  the  lord  of  a  manor  that  the  plaintiff  was 
his  villein  regardant,  and  the  evidence  being  that  he  was 
his  villein  in  gross,  the  question  arose,  for  which  side 
judgment  should  be  given  ?  The  defendant  insisted 
that  the  substantial  question  was,  "villein  or  free?"  not 
"  villein  regardant  or  villein  in  gross  ?"  and  that  having 
greater  rights  over  the  plaintiff  as  "  villein  in  gross  " 

1  The  "  wisdom  of  our  ancestors  "  in  their  criminal  law  was  particularly 
shown  in  their  treatment  of  women  ;  for  as  no  woman  could  lawfully  be  a 
cUrk  (Pope  Joan's  case  «ot  being  recognized),  all  women  convicted  of  lar- 
ceny were  hanged,  whether  they  could  read  or  not.  *  Dyer,  505  a. 


i92          REIGN    OF    QUEEN   ELIZABETH.     [1559, 

than  as  "  villein  regardant,"  he  had  proved  more  than 
he  was  bound  to  prove,  and  the  action  was  well  barred. 
One  judge  inclined  to  this  opinion,  but  the  rest  of  the 
Court  thought  that,  in  favor  of  liberty,  the  plea  must 
be  strictly  proved ;  and  peradventure  the  plaintiff  was 
misled  by  the  false  issue  tendered  to  him,  and  might 
have  deemed  it  enough  to  negative  the  regardancy, 
without  bringing  forward  proof  to  negative  the  villeinage 
in  gross.  So  the  plaintiff  became  a  free  man."1 

A.  B.,  seized  in  fee  of  a  manor  to  which  a  villein  was 
regardant,  made  a  feoffment  of  one  acre  of  the  manor  by 
these  words :  "  I  have  given  one  acre,  &c.,  and  further, 
I  have  given  and  granted,  &c.,  John  S.  my  villein." 
Question,  "  does  the  villein  pass  to  the  grantee  as  a  vil- 
lein in  gross,  or  as  a  villein  appendant  to  that  acre  ?" 
Two  of  the  judges  thought  he  should  pass  in  gross,  as 
there  are  several  gifts,  though  in  one  deed  ;  while  the 
other  judges  said  that  if  the  whole  manor  had  been 
granted,  with  a  further  grant  of  "  John  S.  my  villein," 
the  villein  would  clearly  have  passed  as  part  of  the 
manor,  and  therefore  that  the  acre  and  the  villein  being 
granted  together  there  was  no  severance.  The  Court 
being  equally  divided,  no  judgment  seems  to  have  been 
given.1 

The  tenant  in  tail  of  a  manor,  to  which  villeins  are 
regardant,  enfeoffs  one  of  the  villeins  of  one  acre  of  the 
manor,  and  dies.  Now  he  clearly  had  exceeded  his 
power,  although,  had  he  been  tenant  in  fee  simple,  the 
effect  would  have  been,  that  the  villein  would  have  been 
enfranchised.  But  the  question  was,  whether  the  son 
of  the  feoffer,  who  was  heir  in  tail,  could  at  once  seize 
the  villein?  The  Court  held  that,  although  all  the 
father  had  done  might  be  disaffirmed,  the  son  was 
bound,  first  to  recover  the  acre  of  land,  and  then,  but 
not  till  then,  he  might  seize  his  villein.1 

1  Dyer,  48  b.  pi.  i.  *  Dyer,  48  b.  pi.  2. 

*  Dyer,  48  b.  pi.  4.  "  So  it  is  holden  in  our  old  books,  if  a  villein  be 
made  a  knight,  for  the  honor  of  his  degree  his  person  is  privileged,  and  the 
lord  cannot  seize  him  until  he  be  disgraded." — Co.  Lift.  136.  If  a  niefe,  or 
female  villein,  was  married  by  a  freeman,  the  lord  could  not  seize  her,  but 
might  maintain  an  action  against  the  husband  for  the  loss  of  her :  and  if  a 
Yillein  was  professed  as  a  monk,  the  lord  could  not  seize  him,  but  might 
maintain  a  similar  action  against  the  superior  of  the  convent  who  admitted 
him. — Lit/  sec.  202  ;  2  Bl.  Ccm.  95,  96. 


OLD   HALL  OF  THE  INNER  TEMPLE. 


'559-]  JAMES    DYER.  193 

Butler,  lord  of  the  manor  of  Badminton,  in  the  county 
of  Gloucester,  contending  that  Crouch  was  his  villein  re- 
gardant, entered  into  certain  lands,  which  Crouch  had 
purchased  in  the  county  of  Somerset,  and  leased  them 
to    Fleyer.     Crouch    thereupon   disseized    Fleyer,    and 
Fleyer  brought  an  action  against  Crouch,  who  pleaded 
that   he   had  purchased   the  land.     Fleyer  replied   his 
lease  from  Butler,  and  alleged  that  "  Butler  and  his  an- 
cestors, and  all  those  whose  estate  he  hath  in  the  manor 
of  Badminton,  were  seized  of  Crouch  and  his  ancestors, 
as  of  villeins  regardant  to  the  same  manor,  from  time 
whereof  the  memory  of  man  runneth  not  to  the   con- 
trary."    Issue  being  thereupon  joined,  the  jury  found  a 
special   verdict,  "  That    Butler   and   his  ancestors  were 
seized  of  the  manor  from  time  immemorial ;    and  that 
the  ancestors  of  Butler  were  seized,  during  all  that  time, 
of  the  ancestors  of  Crouch  as  of  villeins  regardant,  until 
the  first  year  of  Henry  VII.,  and  that  Crouch  was  a  vil- 
lein  regardant  to  the  said  manor,  and  that  no  other 
seizin  of  Crouch  or  his  ancestors  was  had  since ;    but 
whether  the  said  seizin  of  the  said  manor  be  in  law  a 
seizin  of  the  said  Crouch  and  his  ancestors  since  the  said 
first  year  of  Henry  VII.  the  jurors  prayed  the  opinion  of 
the  Court." 

Dyer,  C.  J.,  and  all  the  Judges  of  the  Court  of  Com- 
mon Pleas,  agreed  that  upon  this  verdict  there  should 
be  judgment  for  the  defendant,  chiefly  on  this  ground, 
— "  because  no  actual  or  full  seizin  in  Butler  and  his  an- 
cestors, of  Crouch  and  his  ancestors  as  villeins  regardant, 
is  found,  but  only  a  seizin  in  law,  and  the  lord  having 
let  an  hundred  years  pass  without  redeeming,  the  villein 
or  his  issue  cannot  after  that  seize  them."  ' 

The  only  criminal  case  of  much  celebrity  in  which 
Lord  Chief  Justice  Dyer  was  concerned  was  the  trial  of 

1  Dyer,  266.  pi.  n.  Villeins  in  gross  as  well  as  villeins  regaidant  were 
considered  real  property.  Littleton  thus  defines  villeins  in  gross :  "  If  a  man 
or  his  ancestors,  whose  heir  he  is,  have  been  seized  of  a  villein,  and  of  his 
ancestors  as  of  villeins  in  gross,  time  out  of  memory  of  man,  these  are  vil- 
leins in  gross."  (Litt.  sec.  182.)  Villeinage  is  supposed  to  have  finally  dis- 
appeared in  the  reign  of  James  I.,  but  there  is  great  difficulty  in  saying 
when  it  ceased  to  be  lawful,  for  there  has  been  no  statute  to  abolish  it  ;  and 
by  the  old  law,  if  any  freeman  acknowledge  himself  in  a  court  of  record  to 
be  a  villein,  he  and  all  his  afterborn  issue  and  their  descendants  were 
villeins. — Litt.  sec.  185. 
I—I3. 


t94        REIGN    OF    QUEEN    ELIZABETH.     [1580. 

Thomas,  Duke  of  Norfolk,  for  high  treason  in  assisting 
the  claim  of  Mary  Queen  of  Scots  to  the  crown  of  Eng- 
land. On  that  occasion,  he  attended  with  the  other 
Judges  to  assist  the  Lord  High  Steward  and  the 
Peers,  who  were  to  pronounce  on  the  fate  of  the  noble 
prisoner. 

The  Duke,  when  arraigned,  having  prayed  that  coun- 
sel might  be  assigned  to  him,  and  cited  the  case  of 
Humphrey  Stafford,  Duke  of  Buckingham,  as  a  pre- 
cedent in  point,  Sir  James  Dyer  said, — 

"  My  Lord,  that  case  of  Humphrey  Stafford,  in  primo 
Henry  VII.,  was  about  pleading  of  sanctuary,  for  that 
he  was  taken  out  of  sanctuary  at  Culneham,  which  be- 
longed to  the  Abbot  of  Abingdon  ;  so  the  question  was, 
whether  he  should  be  allowed  sanctuary  in  that  case, 
and  with  that  form  of  pleading,  which  was  matter  of 
law  :  in  which  case  he  had  counsel,  and  not  upon  the 
fact  of  high  treason ;  but  only  for  the  allowance  of 
sanctuary,  and  whether  it  might  be  allowed,  being 
claimed  by  prescription,  and  without  showing  any 
former  allowances  in  Eyre ;  but  all  our  books  do  forbid 
allowing  of  counsel  in  treason." 

Duke. — "  I  beseech  you,  weigh  what  case  I  stand  in. 
I  stand  here  before  you  for  my  life,  lands,  and  goods, 
my  children,  and  my  posterity  ;  and  that  which  I  esteem 
most  of  all,  for  my  honesty.  I  am  unlearned ;  if  I  ask 
anything,  and  not  in  such  words  as  I  ought,  I  beseech 
you  bear  with  me,  and  let  me  have  that  favor  the  law 
allows  me.  If  the  law  does  not  allow  me  counsel,  I 
must  submit  me  to  your  opinions.  I  beseech  you,  con- 
sider of  me.  My  blood  will  ask  vengeance  if  I  be  un- 
justly condemned.  I  honor  your  learnings  and  your 
gravities ;  I  beseech  you  have  consideration  of  me,  and 
grant  me  what  the  law  will  permit  me." 

The  other  judges  confirmed  the  rule  as  laid  down  by 
the  Chief  Justice  of  the  Common  Pleas.  He  does  not 
appear  afterwards  to  have  interfered,  and  he  cannot  be 
considered  answerajple  for  the  unjust  conviction  which 
followed.1 

If  ruffled  by  any  annoyance  in  the  discharge  of  his  ju- 
dicial duties,  he  prayed  to  Heaven  for  composure,  and 
1  St  Tr.  957.1042. 


1580.]  JAMES    DYER.  195 

when  he  returned  home  he  played  an  air  on  the  vir- 
ginals. 

*'  For  publique  good,  when  care  had  cloid  his  minde, 

The  only  joye,  for  to  repose  his  sprights, 
Was  musique  sweet,  which  showed  him  well  inclind  ; 

For  he  that  dooth  in  musique  much  delight 
,  A  conscience  hath  disposed  to  most  right ; 

The  reason  is,  her  sound  within  our  eare 
A  sympathie  of  heaven  we  think  we  heare."1 

There  was  one  charge  brought  against  him  for  arbi- 
trary conduct  as  Judge  of  Assize.  He  always,  accord- 
ing to  the  fashion  of  the  times,  rode  the  same  circuit, 
and  he  chose  the  MIDLAND.  He  seems  to  have  rendered 
nimself  unpopular  upon  it  by  rigidly  discountenancing 
the  jobs  and  oppressions  of  magistrates,  and  perhaps  by 
the  prejudices  and  partialities  which  are  apt  to  inflence 
a  judge  who  becomes  too  familiar  with  those  among 
whom  he  is  to  administer  justice.  At  last,  a  "  supplica- 
tion," or  memorial,  from  the  justices  of  Warwickshire, 
containing  nine  heads  of  complaint  against  him,  was 
presented  to  the  Queen  and  the  Privy  Council.  They 
were  chiefly  of  a  frivolous  nature,  as,  for  example,  "  that 
a  gun  going  off  accidentally  during  the  assizes,  he  ac 
cused  the  justices  of  a  general  slackness  of  their  duties, 
saying,  '  they  ruled  the  country  as  pleased  them,  and 
that  there  was  nothing  with  them  but  sic  volo,  sic  jubeo?  " 
In  his  written  answer,  now  extant  among  the  MSS.  of 
the  Inner  Temple,  he  says,  "  As  to  the  shooting  once  of  a 
gun  in  the  time  of  the  assizes,  I  am  sure  I  was  not  so  greatly 
offended,  if  it  were  not  of  purpose  done  ;  nor  were  these 
words  sic  volo,  sic  jubeo,  used  by  me  in  the  sense  al- 
leged." He  justifies  himself  at  great  length  for  what 
he  had  done,  in  supporting  a  poor  widow  against  the 
tyranny  of  a  cruel  knight,  backed  by  other  justices  ;  and 
he  thus  concludes, — 

"  All  which  premises  being  true,  as  indeed  they  are,  I 
ask  judgment  of  the  said  Lords  of  the  Council,  and  all 
others  indifferent,  whether  I  had  just  cause  ministered 
unto  me  by  the  defaults  of  the  justices  and  government 
of  the  shire,  and  slackness  of  her  Majesty's  service, 
to  be  angry  and  vehemently  moved  to  choler.  And 
although  I  did  say  in  excessu  meo, '  omnis  homo  mendax' 

1  Whetstones. 


196         REIGN    OF    QUEEN    ELIZABETH.     [1582. 

(as  David  said),  yet  for  mine  age  and  long  continuance 
there,  which  hath  been  above  twenty  years  in  that  cir- 
cuit, I  am  rather  to  be  borne  with  than  contplained  of." 

Luckily  for  Dyer,  Sir  Thomas  Bromley,  lately  ap- 
pointed Lord  Chancellor,  was  his  fast  friend,  so  that  due 
weight  was  given  to  his  defense,  and  he  was  allowed  to 
continue  in  the  exercise  of  his  office. 

But,  about  two  years  afterwards,  he  encountered  an 
enemy  whom  no  Chief  Justice  or  Chancellor  has  been 
able  to  conquer — DEATH.  Being  struck  by  a  sudden 
disease,  while  still  in  the  full  possession  of  his  faculties, 
he  expired  at  Great  Stoughton,  in  the  county  of  Hun- 
tingdon, in  the  /ist  year  of  his  age.  In  the  parish 
church  there  may  still  be  seen  a  monument  erected  to 
his  memory  by  his  nephew,  with  the  following  in- 
scription : 

"  DEYERO  tumulum  quid  statuis,  Nepos, 
Qui  vivit  volitatque  ora  per  omnium  ? 
Exegit  monumenta  ipse  perennia, 
In  queis  spirat  adhuc  ;  spirat  in  his  themis, 
Libertas,  Pietas,  Munificentia. 
En  decreta,  libros  vitam,  obitum  senis  ! 
./Eternas  statuas  !    Vivit  in  his  themis, 
Libertas,  Pietas  Munificientia. 
^Lternas  statuas  has  statuit  sibi : 
.<Eternis  statuis  cedite  marmora  !" 

Among  his  contemporaries  Dyer  was  universally  es- 
teemed the  most  perfect  model  of  a  Judge  for  learning, 
integrity,  and  abilities.  The  eulogium  of  Camden  is 
only  the  echo  of  the  public  voice :  "  JACOBUS  DlERUS," 
says  that  annalist,  "  in  communi  placitorum  tribunali 
Justiciarius  Primarius  qui  animo  semper  placido  et  sereno 
omncs  judicis  cequissimi  partes  implevit ;  et  juris  nostri 
prudent iam  commentariis  illustravit." 

Whetstones  particularly  lauds  the  disinterested  exer- 
cise of  his  patronage : 

"  Fit  men  he  did  in  office  ever  place, 
And  ofte  put  by  his  freends  and  neerest  kin 

Affirming,  though  the  gifte  were  in  his  grace, 
4  The  common-weale  cheef  intrest  had  therein, 
And  therefore  meet  the  worthy  should  it  win  ;' 

Words  like  himself,  who  favoured  publique  good, 

Before  their  gaine  that  were  spronge  of  his  blood." 

He  bequeathed  his  "  REPORTS"  to  his  nephews,  who 


1582.]  JAMES    DYER.  197 

published  them  soon  after  his  death,  with  a  dedication 
to  Lord  Chancellor  Bromley,  in  which  they  say — 

"  Quamvis  supervacaneum  fortasse  videri  possit  (ra- 
tione  praesertim  rei  ipsius  habita,  Authorisque  facultate 
perspecta)  Protectorem  et  Patronum  adscribere ;  tamen 
cum  mors  nobis  Authoris  vitum  inviderit,  multosque 
haec  nostra  setas  protulerit,  quibus  cordi  est  alienae  in- 
dustriae  obtrectare,  opere  precium  existimavimus  huic 
nostrae  orbitati  alterum  patrem  parentemque  adsciscere, 
quern  quidem  te(vir  insignissime) ut  aptissimum,  ita  et  pa- 
ratissimum  fore  humillim£  obsecrare  tandem  statuimus." 

In  an  English  address  "  To  the  Students  of  the  Com- 
mon Laws  of  this  realm,"  the  editors  express  a  wish 
"  that  the  good  acceptation  and  friendly  thankfulnesse 
of  all  such  as  are  to  receive  knowledge  and  fruit  thereby, 
may  appeare  such  as  the  late  reverend  Judge  and  paine- 
full  Author  thereof  may  receive  the  guerdon  worthie  his 
exquisite  and  painfull  travaile."  We  have  likewise 
"  LECTORI  CARMEN,"  which,  after  comparing  DYERUS 
to  the  bee,  who  collects  honey  for  others,  thus  proceeds  • 

"  Fasciculum  causas  omnes  congessit  in  unum 

Curia  quas  lustrix  sex  celebrata  dedit. 
Edidit  has  alter,  fructus  ut  prostera  proles 

Perciperet,  tanto  qui  placuere  viro, 
Edidit  ut  semper  post  funera  viveret  author : 

Quern  rapuit  studiis  mors  inamica  piis." 

I  am  afraid  that  the  hope  of  immortality  from  LAW 
REPORTS  is  visionary.  But  Dyer  may  really  be  consid- 
ered the  Shakspeare  of  Law  Reporters,  as  he  had  no 
predecessor  for  a  model,  and  no  successor  has  equaled 
him.  As  yet  his  fame  flourishes,  and  those  who  are 
most  competent  to  appreciate  his  merit  have  praised 
him  the  most.  Thus  writes  that  great  lawyer,  Sir  Har- 
bottle  Grimston  :  "  If  we  have  failed  in  the  number  of 
persons  reporting,  it  hath  been  amply  recompensed  in 
the  grandeur  and  authority  of  one  single  author,  SIR 
JAMES  DYER,  Chief  Justice  of  the  Common  Pleas,  by 
whose  great  learning  and  assiduous  study  the  Judgments 
and  Law  Resolutions  have  been  transmitted  and 
perpetuated  until  the  24th  year  of  the  late  Queen  Eliz- 
abeth."1 

1  Pref.  to  Cro.  Car. 


198         REIGN    OF    QUEEN    ELIZABETH.     [1555. 

He  was  married  to  Margaret,  daughter  of  Sir  Mauiice 
£  Barrow,  and  relict  of  the  celebrated  philologist  Sir 
Thomas  Elyot,  author  of  "  The  Governor."  By  her  he 
had  no  issue.  His  estates  went  to  a  collateral  branch  of 
his  family,  which  flourished  for  several  generations,  and 
was  honored  with  a  baronetcy;  but  is  now  extinct.  The 
last  male  representative  of  the  Chief  Justice  ended  his 
days  in  a  workhouse ;  whereas  it  was  expected,  in  the 
reign  of  Queen  Mary,  that  in  future  times  the  DYERS 
would  be  more  distinguished  than  the  MONTAGUES.  Ra- 
ther than  to  be  ancestor  of  the  dukes  or  of  kings,  it  is 
more  glorious  to  deserve  the  praise  quaintly  bestowed  on 
this  great  and  good  man  : — 

"  Alive,  reftige  of  those  whom  wrong  did  paine, 
A  Dyer  such  as  dy'de  without  a  stayne"1 

I  must  now  return  to  the  Court  of  King's  Bench,  in 
which,  after  the  very  obscure  Chief  Justices  who  had  pre- 
sided there  in  the  latter  part  of  the  reign  of  Henry  VIII., 
and  in  the  reigns  of  Edward  VI.  and  of  Queen  Mary, 
Queen  Elizabeth  placed  a  distinguished  man,  whose  name 
is  still  held  in  reverence  by  lawyers,  although  he  has  not 
gained  an  historical  reputation — SIR  ROBERT  CATLYNE.* 
His  supposed  extraction  is  a  burlesque  upon  heraldic 
pedigree,  for  his  ancestor,  more  Distinguished  than  any 
of  the  companions  of  the  Conqueror,  has  been  said  to  be 
no  other  than  the  conspirator  LUCIUS  CATILINA,  who, 
instead  of  having  fallen  in  battle,  as  is  related  by  Sallust, 
escaped  into  Britain,  and  left  descendants  in  Kent,  a.  pro- 
vince which  had  reached  a  considerable  degree  of  civil- 
ization before  it  was  visited  by  Julius  Caesar.  Fuller, 
though  much  disposed -to  puff  the  Chief  Justice,  is  mod- 
estly contented  with  saying,  "  His  name  hath  some  al- 
lusion to  the  Roman  senator  who  was  the  incendiary  of 
that  state,  though  in  nature  far  different,  as  who,  by  his 
wisdom  and  gravity,  was  a  great  support  to  his  nation." ' 

Our  Chief  Justice  certainly  was  descended  from  the 
Catlynes  of  Rounds  ih  Northamptonshire,  who  had  been 
long  settled  there,  and  were  a  branch  of  a  family  of  the 
same  name  which  had  flourished  from  time  immemorial 

1  Whetstones. 

'  Spelt  likewise  Catlyn,  Catelyn,  Catalyn,  Catlin,  Catelin.,  and  Catehne. 

1  Worthies,  i.  568. 


1555-]  ROBERT    CATLYNE.  I99 

in  Kent.  He  was  born  at  Bilbey  in  Leicestershire,  hav- 
ing the  bad  or  good  luck  to  be  the  younger  son  of  a 
younger  brother,  who  had  married  the  heiress  of  a  small 
estate  in  this  county. 

I  do  not  find  any  thing  authentic  of  his  early  career, 
except  that  he  studied  law  with  extraordinary  diligence  in 
the  Middle  Temple.  The  first  considerable  distinction 
which  he  gained  in  public  life  seems  to  have  been  by  the 
wonderful  feast  given  in  the  year  1555, when  he  was  called 
Sergeant,  the  account  of  which  fills  many  folio  pages  of 
Dugdale's  ORIGINES  JURIDICIALES.  It  was  held  soon  after 
Queen  Mary's  marriage,  and  the  object  was  to  show  to 
the  Spanish  nobles  who  accompanied  Philip  the  riches 
and  magnificence  of  England.  There  were  seven  barris- 
ters invited  in  the  same  call,  and — besides  rings  of  great 
weight  presented  to  the  Queen,  the  officers  of  state  and 
the  judges,  and  large  pecuniary  contributions — each  vol- 
untarily furnished  contingents  in  kind,  of  which  the  fol- 
lowing is  a  sample : — 

Gates  sent  in  by  Mr.  Catlyne. 

£  J.    d. 

9  swans,  each  at  icxr.                 -             -             -  -  -4100 

3  pheasants,  at  4J.    -                -            -            -  •  -0120 

Pigeons,  9  dozen  and  a  half,  at  i8*/.  a  dozen  -  -  -    o  14    3 

Capons,  7  at  2s.  6d,  -                -            -            -  -  -0176 

Pea  chickens,  4  at  2s.               -            -             -  -  -    O    8     O 

Red  deer,  rated  at-                -            -            -  -  -OIOO 

Does,  fat,  5,  not  valued. 

Claret  wine,  I  hogshead          -            -            -  -  -1176 

Quinces,  60              -                -            -            -  -  -030 

Then  follow  turkey  chicks,  woodcocks,  curlews,  good- 
wits,  knotts,  plovers,  larks,  snipes,  teals,  and  coneys,  from 
the  same  donor.  This,  being  a  far  more  liberal  donation 
than  any  of  the  other  new  sergeants  furnished,  materially 
added  to  the  splendor  of  the  entertainment,  and  was 
supposed  to  lay  the  foundation  of  the  great  advance- 
ment which  was  speedily  bestowed  upon  Sergeant  Cat- 
lyne.1 

1  The  reader  may  like  to  see  the  dishes  and  the  prices  of  them,  at  one  of 
the  many  tables  laid  for  different  degrees  of  guests  : — 

"  A  proportion  for  two  mess  of  meat  for  the  table  prepared  for  the 
Lords  of  the  King  and  Queen's  Privy  Coancil,  and  certain  Spanish 
Lords  and  Gentlemen  that  accompanied  them  to  the  feast 


2OO 


REIGN    OF    QUEEN  MARY. 


[I559- 


In  the  following  year,  he  was  promoted  to  the  rank  of 
Queen's  Sergeant,  and  towards  the  end  of  Mary's  reign 
he  was  made  Puisne  Justice  of  the  Court  of  Common 
Pleas.  He  had,  from  the  first,  a  high  judicial  reputation, 
on  account  of  the  gravity  of  his  deportment  and  his 
profound  knowledge  of  the  law  ;  and,  although  inclining 
to  the  new  doctrines  in  religion,  he  was  so  discreet  as  to 
conform  to  the  creed  of  the  Court,  whatever  that  might 
be,  following  the  example  of  the  most  approved  states- 
men of  that  age.  This  gave  no  offense  to  Elizabeth ; 
and  upon  her  accession,  having  taken  her  Prime  Minister 
and  her  Chancellor  from  the  same  class  of  conformists, 
she  made  Sir  Robert  Catlyne,  who  was  now  a  professed 
Protestant,  Chief  Justice  of  England. 

He   held    the   office   with   increasing    respect   above 


The  first  course, 
two  mess  of  meat. 


Second  course,    ) 
two  mess  of  meat.  ) 


|  A  standing  dish  of  wax,  representing  the  ) 
)    Court  of  Common  Pleas,  artificially  made  f 
A  spuld  of  brawn  for  either  mess  - 
Boiled  capons  in  white  broth,  2  at  a  mess  - 
Swans  roasted,  2  ;  qach  mess  one  - 
Bustards,  2  ;  each  mess  one  - 
Chemet  pies,  8  ;  to  each  mess  4      - 
Pikes,  4  ;  to  each  mess  2 
Capons  roasted,  4  ;  to  each  mess  2  - 
Venison  baked,  4  large  pasties  ;  every 

mess  2  .  ... 

Hern  and  bittern,  each  mess  2 
Pheasants  roasted,  4  ;  each  mess  2  - 
Custards     -  -  ... 

A  standing  dish  of  wax,  to  each  mess 

one          -  _ 

Jellies  planted,  2  dozen 
Cranes,  2,  each  mess  one 
Partridges,  12  ;  for  each  mess  six  - 
Red  deer,  4  pasties  ;  each  mess  two 
Certain  large  joules  of  sturgeon,  to  each 

mess  one  -  . 

Woodcocks  and  plovers,  12  each  mess 
Quince  pies,  baked,  8  ;  each  mess  four 
Rabbit  suckers,  12  ;  each  mess  six 
Snipes  roasted,  12  ;  each  mess  six  - 
Larks,  3  dozen  ;  each  mess  a  dozen  and 

a  half        .  ... 

March-panes,  2  ;  each  mess  one*   - 


£*•    d. 
400 

050 


o    o 
o    o 


O   IO     O 
O   IO     O 


0160 
0160 


.400 

-     I     O     O 

.0160 
-0160 


-068 

-040 
-034 

.020 

.068 


•  Sweet  Cakes.  Lawyers'  feasts  now-a-days  are  not  to  be  despised  ;  but 
are  nothing  compared  with  those  of  our  predecessors  in  the  times  of  the  Tu- 
dots. 


I57i.]  ROBERT    CATLYNE.  201 

fifteen  years ,  but  it  is  only  from  the  generous  praises 
bestowed  upon  him  by  contemporary  writers,  and  from 
the  traditions  of  Westminster  Hall,  that  we  appreciate 
his  merits,  for  he  was  not  an  author  himself,  and  there 
are  hardly  any  reports  of  King's  Bench  decisions  in  his 
time. 

The  only  state  trials  in  the  early  part  of  Elizabeth's 
reign  were  those  of  the  Duke  of  Norfolk  and  of  Hick- 
ford  his  secretary.  At  the  former,  which  took  place 
before  the  Lord  High  Steward  and  the  Peers,  Lord 
Chief  Justice  Catlyne,  attending  as  assessor,  was  several 
times  appealed  to  for  his  opinion.  When  the  point  had 
been  settled  about  the  assignment  of  counsel,  the  pris- 
oner said — 

"  I  am  now  to  make  another  suit  to  you,  my  Lords 
the  Judges:  I  beseech  you  tell  me  if  my  indictment  be 
perfect,  and  sufficient  in  law?"  Lord  C.  jf.  C,  :  "For 
the  sufficiency  of  your  indictment  it  hath  been  well  con- 
sidered by  us  all,  and  we  have  all  with  one  assent  re- 
solved, and  so  do  certify  you,  that  if  the  causes  in  the 
indictment  expressed  be  true  in  fact,  the  indictment  is 
wholly  and  in  every  part  sufficient."  Duke :  "  Be  all 
the  points  treasons?"  Lord  C.  J.  C.  :  "Ail  be  treasons, 
if  the  truth  of  the  case  be  so  in  fact."  Duke :  "  I  will 
tell  you  what  moveth  me  to  ask  you  this.  I  have  heard 
of  the  case  of  the  Lord  Scrope  ;  he  confessed  the  indict- 
ment, and  yet  traversed  that  the  points  thereof  were 
not  treasons."  Lord  C.  J.  C.  :  "  My  Lord,  he  had  his 
judgment  for  treason  upon  that  indictment,  and  was 
executed  in  the  reign  of  Henry  V." 

A  deposition  or  confession  of  the  Bishop  of  Ross 
being  afterwards  offered  in  evidence  for  the  Crown,  the 
Duke  objected  that  he  was  a  Scot,  and  that,  having  ad- 
mitted hisnself  to  be  guilty  of  high  treason  against  his 
own  sovereign,  he  ought  not  to  be  received  as  a  witness. 

Lord  C.  J.  C.  :  "Though  a  Scot,  he  is  a  Christian,  and 
he  has  not  been  attainted  or  outlawed  of  treason,  nor 
yet  indicted."  Duke:  "It  is  worse;  he  has  confessed 
treason.  Bracton,  if  I  mistake  not,  says  that  witnesses 
must  be  legates  homines  ;  and  so  cannot  strangers  be,  like 
the  Bishop  of  Ross."  Lord  C.  J.  C. :  "  Bracton,  indeed, 
is  an  old  v  riter  of  our  law,  and  by  Bracton  he  may  be 


202         REIGN    OF    QUEEN    ELIZABETH.     [1571. 

a  witness  ;  a  stranger,  a  bondman  may  be  a  witness, 
Ask  you  all  the  Judges  here?"  All  the  Judges: 
"  He  may,  he  may !"  Duke  :  "  You  shall  not  recover 
lands  upon  the  evidence  of  a  stranger,  much  less  con- 
vict of  treason."  Lord  C.  J.  C. :  "  This  would  be  a 
strange  device,  that  Scots  may  not  be  witnesses ;  for  so, 
if  a  man  would  commit  treason,  and  make  none  privy 
but  Scots,  the  treason  were  unpunishable."  Duke  :  "  In 
case  of  treason  they  may  be  heard  as  witnesses  for  the 
Queen,  although  it  resteth  in  the  breast  of  the  Peers 
whether  or  no  to  afford  credit  unto  them." 

Catlyne  cannot  be  said  to  have  violated  the  rules  of 
evidence  ;  for  written  depositions  or  confessions  of  per- 
sons alive  were  then  considered  clearly  admissible  in 
capital  cases,  and  the  circumstance  of  alienage,  as  he 
stated,  could  only  go  to  their  credit ;  but  he  can  hardly 
be  defended  from  the  charge  of  consciously  perverting 
the  law  of  treason. 

The  chief  matter  urged  against  the  prisoner  was,  that 
he  had  sent  a  sum  of  money  into  Scotland  to  assist  the 
party  there  which  took  the  side  of  Mary,  the  absent 
Queen,  against  the  Regent,  whom  Elizabeth  patronized, 
there  being  peace  between  the  two  countries. 

Duke  of  Norfolk:  "The  statute  of  Edward  III.  only 
makes  it  treason  to  compass  the  death  of  the  sovereign, 
or  to  levy  war  against  him,  or  to  aid  his  enemies ;  and 
there  is  no  proof  that  I  did  any  of  these  things."  Lord 
C.  jf.  C.  :  '*  Usage  is  the  best  expounder  of  the  law  ;  and 
we  know  that,  as  this  statute  has  been  expounded,  you 
are  guilty  if  you  have  said  or  done  as  the  witnesses  tell  of 
you."  Duke :  "Supposing  it  proved  that  I  sent  money 
to  the  Lord  Harris,  the  .subject  of  the  Queen  of  Scots, 
how  can  that  be  aiding  an  enemy  of  our  Lady  the  Queen 
of  England  ?  May  a  subject  be  the  Queen's  Majesty's 
enemy,  while  the  Prince  of  that  subject  is  her  friend  and 
in  amity  with  her?  Lord  C.  J.  C. :  "  In  some  cases  it 
may  be  so ;  as  in  France,  if  the  dukedom  of  Britany 
should  rebel  against  the  French  King,  and  should  (dur- 
ing the  amity  between  the  French  and  Queen's  Majesty) 
invade  England,  those  BritopB  would  be  the  French 
King's  subjects  and  the  Queen's  enemies,  though  the 
French  King  remaineth  in  amity ;  and  so  in  your  case. 


15  7 1.]  ROBERT    CATLYNE.  203 

• 

Now  this  is  clearly  sophistical  reasoning  ;  for  although 
an  Englishman,  who  joined  the  invading  army  from 
Britany,  would  certainly  have  been  guilty  of  high  treason, 
it  would  have  been  for  levying  war  against  her  in  her 
realm,  and  for  adhering  to  her  enemies.1  The  Judges 
must  all  have  felt  some  remorse  when,  sentence  of  death 
being  passed  upon  the  prisoner,  he  said — "  I  trust 
shortly  to  be  in  better  company.  God  doth  know  how 
true  a  heart  I  bear  to  her  Majesty,  and  how  true  a  heart 
to  my  country,  whatsoever  this  day  hath  been  falsely 
objected  against  me."" 

The  trial  of  Robert  Hickford,  the  Duke's  secretary, 
for  high  treason,  came  on  soon  after  at  the  bar  of  the 
Court  of  King's  Bench  at  Westminster.  In  fact  nothing 
more  could  be  proved  against  him  than  that  he  had 
written  in  cipher,  and  deciphered  some  letters  which 
had  passed  between  his  master  and  Mary  Queen  of 
Scots  and  the  Bishop  of  Ross ;  but  he  deemed  it  more 
prudent  to  plead  guilty,  and  to  pray  for  mercy.  Lord 
Chief  Justice  Catlyne  then  passed  sentence  upon  him  in 
a  very  long  and  elaborate  discourse,  from  which  I  shall 
make  a  few  extracts  to  show  the  taste  of  the  times : — 

"  Thou  art  a  gentleman  wise  and  well  learned  :  I  wish 
to  God  there  had  been  in  thee  as  much  loyalty  and 
truth  as  there  is  learning  and  other  good  qualities  and 
gifts  of  God  ;  then  hadst  thou  not  fallen  into  this  great 
fault  and  misery.  But  there  have  been  evil  enticers,  evil 
schoolmasters,  evil  seedsmen  ;  they  have  brought  thee 
from  truth  and  good  estate  to  untruth,  treason,  and 
wretchedness ;  where,  before,  you  and  others  were  of 
good  name  and  fame,  they  have  brought  you  to  infamy ; 
of  loyal,  good,  and  true  subjects,  they  have  brought  you 
to  the  name  and  state  of  disloyal  traitors.  A  great  blot 
to  be  a  traitor,  and  the  greatest  infamy  that  can  be.  It 
is  the  chiefest  point  of  the  duty  of  every  natural  and 
reasonable  man,  which  by  the  gift  of  reason  differeth 
from  a  beast,  to  know  his  prince  and  head — to  be  true 
to  his  head  and  prince.  All  the  members  are  bound  to 

1  During  the  Canadian  rebellion,  I  gave  an  opinion  as  Attorney  General, 
which  was  acted  upon,  that  an  armed  band  of  American  citizens  who  in- 
vaded our  territory  without  the  authority  of  their  government  were  liable 
to  be  treated  as  traitors. 

*  St.  Tr.  957-1042. 


204         REIGN    OF    QUEEN    ELIZABETH.     [1571. 

obey  the  head ;  every  man  is  bound  to  risk  life,  to  lay 
out  and  expend  goods,  lands,  and  possessions — to  for- 
sake father,  mother,  kindred,  wife,  and  children,  in  re- 
spect of  preserving  the  prince ;  for  in  defending  the 
prince  they  preserve  father,  mother,  kindred,  wife,  chil- 
dren, and  all.  All  the  duties  to  father,  mother,  friends, 
kindred,  children,  yea,  to  a  man's  wife,  that  is  his  own 
flesh,  are  all  inferior  to  the  duty  that  a  subject  oweth  to 
his  prince.  If  in  any  case  they  shall  allure  a  man  from 
his  prince  they  must  be  forsaken — they  must  come  be- 
hind ;  it  must  be  said  '  vade  post  me,  Satana'  We  must 
first  look  unto  God,  the  High  Prince  of  all  princes,  and 
then  to  the  Queen's  Majesty,  the  second  prince  and 
God's  deputy,  and  our  sovereign  prince  on  earth.  You 
are  wise  and  learned,  as  your  master  was ;  but  the  evil 
seedsmen,  the  evil  seducers  and  enticers,  have  wrought 
evil  effect  in  you  both.  The  great  good  Seedsman  hath 
sowed  in  you  good  gifts,  learning,  knowledge,  and  good 
quality  to  serve  Him,  your  prince,  and  your  country 
withal ;  as  it  is  said  in  the  Gospel,  Bonus  seminator  semi- 
nat'it  semen  bonum,  but  supcrvenit  inimicus  et  seminavit 
zizania  ;  the  good  seedsman  sowed  good  seed,  but  there 
came  the  enemy,  and  he  sowed  darnel,  cockle,  and 
noisome  weeds.  Such  wicked  seedsmen  have  been  in 
England  ;  if  they  had  sown  the  right  seed  for  their  own 
use,  the  seed  of  hemp,  and  felt  of  it,  they  had  received 
according  to  their  deserving.  If  they  had  been  handled 
as  theydeserved,  they  should  long  ago  have  had  of 
their  own  due  seed,  hemp,  bestowed  upon  them,  meet 
seed  for  such  seedsmen." 

He  proceeds  to  explain  how  certain  foreign  am- 
bassadors at  the  Court  of  England  were  the  wicked 
seedsmen,  and  to  prove  that  they  might  lawfully  be 
treated  with  a  hempen  cravat ;  giving,  as  an  illustration, 
the  case  of  M.  dc  Marveilles,  ambassador  of  Francis  I., 
"  who  was  beheaded  jure  gentium,  at  Milan,  for  con- 
spiring against  the  prince  to  whom  he  was  accredited." 
Thus  he  concludes  that  topic  : — 

"  May  messengers  conspire  treason  against  princes 
to  whom  they  be  sent  ?  Treason  to  princes  is  not  their 
message  ;  it  is  no  lawful  cause  of  their  sending ;  if  of 
their  own  heads  thev  presume  it,  their  own  heads  must 


157 1.]  ROBERT    CATLYNE.  205 

answer  for  it.  As  for  them  that  seek  fame  by  treason, 
and  by  seeking  the  destruction  of  princes,  what  shall 
sound  that  fame  ?  Shall  the  golden  Trump  of  Fame 
that  Chaucer  speaketh  of?  No  !  but  the  black  Trump 
of  Shame  shall  blow  out  their  infamy  for  ever."1 

Lord  Chief  Justice  Catlyne  spent  the  rest  of  his  days 
in  the  quiet  routine  of  his  judicial  duties,  and  died  in 
the  autumn  of  the  year  1574,  at  his  country  seat  at 
Newenham,  in  Bedfordshire,  where,  according  to  the 
directions  of  his  will,  he  was  privately  buried,  without 
any  monument  being  erected  to  his  memory. 

With  the  opportunity  of  amassing  great  riches,  he 
died  poor,  leaving  behind  him  a  high  reputation  for  dis- 
interestedness, as  well  as  learning  and  ability.  He 
would  not  accept  any  grant  of  church  lands ;  and 
although  his  place  of  residence  had  been  the  site  of  a 
priory,  he  had  purchased  it  at  a  fair  price,  paid  from  his 
honest  earnings.9  A  descendant  of  his  having  spoken 
disrespectfully  to  a  Chief  Justice,  whose  hands  were  not 
so  clean,  and  being  thus  rebuked,  "  I  expected  not  such 
treatment  from  one  whose  kinsman  was  my  predecessor 
in  this  court,  and  a  great  lawyer,"  made  answer,  "  My 
Lord,  he  was  a  very  honest  man,  for  he  left  a  small 
estate."8 

He  married  Anne,  daughter  of  Thomas  Bowles,  Esq., 
by  whom  he  had  an  only  daughter  and  heir.  She  be- 
came the  wife  of  Sir  John  Spencer,  of  Althorpe,  in  the 
county  of  Northampton  ;  and  from  them  descend  the 
Dukes  of  Marlborough,  so  that  the  Russells,  and  most 
of  the  greatest  families  in  England,  may  easily  trace 
Sir  Robert  Catlyne  in  their  pedigree, — if  they  should 
be  disappointed  in  their  wish  to  go  up  to  the  CON- 
SPIRATOR. 

The  office  of  Chief  Justice  of  the  King's  Bench  was 
held  during  the  next  eighteen  years  by  SIR  CHRIS- 
TOPHER WRAY,  of  whom  little  is  known,  except  from 
the  Law  Reports  and  the  Parliamentary  history.  His 
parentage  even  is  doubtful.  There  are  two  statements 

1  St.  Tr.  1044.  I  must  say,  for  the  honor  of  Westminster  Hall,  that  not- 
withstanding the  quaintness  of  this  composition,  I  doubt  whether  the 
pulpit,  the  stage,  or  parliament,  had  yet  produced  anything  better.  Every 
one  must  admire  its  rhymthmical  cadences. 

s  Hyson's  Bedfordshire  p.  89.  »  Fuller's  Worthies,  ii.  568. 


2o6        REIGN    OF    QUEEN    ELIZABETH.     [1571. 

on  the  subject  in  thi  books  of  the  Herald's  College  : 
one  says  that  he  was  "  the  son  of  Thomas  Wray,  of 
Richmondshire,  by  the  daughter  and  heir  of  Richard 
Jackson,  in  the  county  of  York;"  and  the  other,  that 
he  was  "  the  natural  son  of  Sir  Christopher  Wray,  Vicar 
of  Hornby,  by  a  wench  in  a  belfry,  and  brought  up  to 
the  study  of  the  law  by  a  brother  of  his  reputed  father, 
who  was  a  servant  of  the  Lord  Conyers  of  Hornby." 
The  latter  is  the  more  probable  story;  and  in  the 
Visitation  of  the  county  of  Lincoln  by  the  Heralds  in 
1634,  there  is  a  pedigree  of  the  family,  signed  by  his 
grandson  and  heir,  Sir  John  Wray,  Bart.,  commencing 
with  the  Chief  Justice,  and  giving  the  arms  of  Wray, 
which  were  granted  to  him  without  any  quartering  of 
the  arms  of  Jackson;  whereas,  if  legitimate,  to  the  rep- 
resentation of  that  family  he  would  have  been  entitled 
and  he  would  have  laid  claim. 

He  seems,  under  the  disadvantages  of  birth,  to  have 
raised  himself  by  energy  and  fair  character,  without 
shining  abilities.  The  first  perfectly  authentic  informa- 
tion we  have  of  him  is,  that  he  took  the  degree  of  the 
coif  in  1567,  and  soon  after  he  was  made  a  Queen's 
Sergeant.1 

In  April,  15/1,  he  was  returned  to  parliament;  and 
he  must  then  have  been  very  high  in  his  profession,  for 
he  was  elected  Speaker  of  the  House  of  Commons, — a 
post,  in  those  days,  always  conferred  upon  an  eminent 
practitioner  at  the  bar.  His  speech  to  the  Queen,  when 
presented  to  her  for  confirmation,  is  extant,  but  too 
long  and  dull  to  be  copied.  He  began  by  proving  the 
Queen's  title  to  be  Head  of  the  Church,  "  from  the 
remembrance  of  Lucius,  the  first  Christian  King  of 
Britain,  who,  having  written  to  Elutherius  the  Pope, 
1300  years  past,  for  the  Roman  Laws,  was  answered 
that  he  had  the  Holy  Scriptures,  out  of  which  he  might 
draw  good  discretion,  for  that  he  was  the  Vicar  of  Christ 
over  the  people  of  Britain."  After  enumerating  acts 
done  by  subsequent  sovereigns  to  check  the  encroach- 
ments of  the  See  of  Rome,  he  says,  "  In  the  reports  of 
the  law  we  find  that  an  excommunication  of  a  certain 
person  came  from  the  Pope,  under  his  leaden  bull,  and 

*  Dugd.  Chron.  Ser. 


15  74-J  CHRISTOPHER     WRAY.  207 

was  showed  in  abatement  of  an  action  at  common  law ; 
which,  beside  that  it  was  of  no  force,  the  King  and 
judges  were  of  mind  that  he  who  brought  it  had  de- 
served death,  so  to  presume  on  any  foreign  authority ; 
which  authority  being  now  by  God's  grace  and  her 
Highness's  means  abolished,  and  the  freedom  of  con- 
sciences and  the  truth  of  God's  word  established,  we 
ought  greatly  to  thank  God  and  her."  Having  dis- 
coursed very  tediously  concerning  religion,  government, 
and  legislation,  and  quoted  Plato  "  de  Legibus"  he  con- 
cluded with  a  just  compliment  to  Elizabeth,  "  that  she 
had  given  free  course  to  her  laws,  not  requiring  the  stay 
of  justice  by  her  letters  or  privy  seals,  as  heretofore 
sometimes  hath  been  by  her  progenitors  used  ;  neither 
hath  she  pardoned  any  without  the  advice  of  those  be- 
fore whom  the  offenders  have  been  arraigned,  and  the 
cause  heard." 

The  Queen's  answer  was  very  courteous  to  him  ;  but 
for  his  guidance  as  a  Speaker  she  told  him,  that  "  the 
Commons  would  do  well  to  meddle  with  no  matters  of 
state  but  such  as  should  be  propounded  unto  them,  and 
to  occupy  themselves  with  other  matters  concerning  the 
commonwealth." 

Mr.  Speaker  Wray  did  his  best  to  enforce  obedience 
to  this  injunction,  but,  in  spite  of  him,  motions  were 
brought  forward  about  the  abuse  of  the  prerogative  in 
granting  monopolies,  and  the  necessity  for  an  act  of  par- 
liament to  settle  the  succession  to  the  crown.  At  the 
close  of  the  session  she  highly  censured  those  audacious 
members  of  the  nether  house  "  for  their  arrogant  and 
presumptuous  folly,  thus  by  superfluous  speech  spend- 
ing much  time  in  meddling  with  matters  neither  per- 
taining to  them  nor  within  the  capacity  of  their  under- 
standing.1 

However,  no  blame  was  imputed  to  Sir  Christopher 
Wray ;  and  as  a  reward  for  his  services,  he  was  made  a 
Puisne  Justice  of  the  Court  of  Common  Pleas.9 

When  elevated  to  the  bench,  he  was  distinguished  not 

1  Parl.  Hist.  724. 

9  According  to  Dugdale,  his  patent  bore  date  May  14,  a  fortnight  before 
the  prorogation  ;  but  I  think  this  must  be  a  mistake,  for  the  common  law 
judges  never  sat  in  the  House  of  Commons  except  during  the  Common- 
wealth. 


ao8          REIGN    OF    QUEEN   ELIZABETH.      [1581. 

only  by  great  skill  in  his  profession,  but  by  a  striking 
decency  of  demeanor,  which  gained  him  much  respect 
from  the  bar  and  the  bystanders. 

On  the  death  of  Sir  Robert  Catlyne  it  was  seen  that 
troublous  times  were  approaching,  from  Mary  Queen  of 
Scots,  lawfully  the  heir  presumptive  and  actually  the 
pretender  to  the  throne,  becoming  impatient  of  the  cap- 
tivity in  which  she  had  been  long  held,  and  from  many 
being  disposed  at  any  risk  to  vindicate  her  claims.  There 
was  an  equal  dread  of  retaining  her  as  a  prisoner,  and 
of  setting  her  at  liberty ;  and,  as  assassination  and  pois- 
oning were  reckoned  un-English,  the  idea  began  to  gain 
ground  that  it  might  be  necessary  to  get  rid  of  her  by 
the  forms  of  law,  for  which  there  were  plenty  of  prece- 
dents in  recent  reigns.  Lord  Keeper  Sir  Nicholas  Ba- 
con, therefore,  pointed  out  to  Elizabeth  the  importance 
of  having  a  safe  man  at  the  head  of  the  administration 
of  criminal  justice,  and  he  recommended  to  her  Sir 
Christopher  Wray,  reminding  her  of  the  maxim  which, 
with  her  approbation,  he  had  adopted  for  his  own  motto, 
MEDIOCRIA  FIRMA.  She,  ever  prudent  in  judicial  ap- 
pointments, unless  (as  in  the  case  of  giving  the  great 
seal  to  Sir  Christopher  Hatton)  she  was  guided  by  her 
heart  rather  than  her  head,  readily  acquiesced,  and,  after 
the  office  had  remained  vacant  a  few  weeks,  Sir  Chris- 
topher Wray,  to  the  envy  of  the  puisnies,  was  installed 
in  it ;  for  they  all  thought  themselves  superior  to  him, 
notwithstanding  the  high  merits  discovered  in  him  by 
the  Lord  Keeper's  harangue  when  he  was  sworn  in. 

The  new  Chief  Justice  fully  justified  the  choice  made 
of  him.  He  was  not  at  all  puffed  up  by  his  elevation. 
In  private  life  he  continued  remarkably  courteous,  but 
he  would  permit  no  solicitations,  even  from  the  most 
powerful,  respecting  causes  which  were  to  come  before 
him.  "  Each  man  he  respected  in  his  due  distance  off 
the  bench,  and  no  man  on  it  could  bias  his  judgment."1 

The  first  important  trial  at  which  he  presided  was  that 
of  Campion  the  Jesuit  and  the  other  priests  accused 
along  with  him  of  a  conspiracy,  at  the  instigation  of  the 
Pope,  for  murdering  the  Queen,  and  for  putting  Mary 
in  her  place.  In  reading  the  report  of  it  we  are  struck 

1  Fuller. 


1581.]  CHRISTOPHER     WRAY.  209 

with  the  dextrous  manner  in  which  he  obtained  a  con- 
viction, by  the  display  of  great  seeming  calmness  and 
forbearance.  Campion  was  a  hot-headed  though  very 
able  man,  and,  stung  by  a  sense  of  the  groundlessness 
of  the  charge  against  him,  was  always  breaking  out  in 
intemperate  sallies.  When  arraigned,  he  wished,  con- 
trary to  a  well-known  rule  of  procedure,  to  make  a 
speech  in  defense  of  his  innocence : 

Wray,  L.  C.  jF. — "  The  time  is  not  yet  come  wherein 
you  shall  be  tried,  and,  therefore,  you  must  now  spare 
speech,  and  preserve  it  till  then ;  at  which  time  you 
shall  have  full  liberty  of  defense,  and  me  to  sit  indiffer- 
ent between  her  Majesty  and  yourself:  whereupon  I 
counsel  you  now  to  say  Guilty  or  Not  Guilty.1' 

The  evidence  was  wholly  insufficient  to  make  out  the 
charge  of  treason,  and  merely  proved  that  the  prisoners 
had  come  on  a  fanatical  mission  from  Rome  in  the  hope 
of  reconverting  the  kingdom  to  the  true  faith.1  The 
Chief  Justice,  however,  by  preserving  the  same  tone,  not 
only  persuaded  the  jury,  but  the  prisoners  themselves, 
that  he  was  their  counsel,  according  to  his  duty  as  judge. 
Having  allowed  them  to  address  the  jury  several  times 
without  interruption,  he  observed,  "  If  you  have  any 
more  to  say,  speak,  and  we  will  hear  you  until  to-mor- 
row morning.  We  would  be  loth  you  should  have  any 
occasion  to  complain  of  the  Court,  and  therefore,  if 
aught  rest  behind  untold  that  may  be  available  for  you, 
speak,  and  you  shall  be  heard  with  indifference."  The 
report  says,  "They  all  thanked  his  Lordship,  and  said 
they  could  not  otherwise  affirm  but  they  had  found  of 
the  Court  both  indifference  and  justice." 

He  made  short  work  of  it  when  the  jury  had  given  in 
their  verdict  of  GUILTY  : — 

Lord  C.  J.  :  "  Campion,  and  the  rest,  what  can  you 

1  While  Campion  lay  under  accusation  in  the  Tower  he  was  several  times 
examined  under  torture,  and  gave  such  clever  answers,  that  Elizabeth  had  a 
great  curiosity  to  see  him.  "  By  her  order  he  was  secretly  brought  one  eve- 
ning from  the  Tower,  and  introduced  to  her  at  the  house  of  the  Earl  of 
Leicester,  in  the  presence  of  that  nobleman,  of  the  Earl  of  Bedford,  and 
of  the  two  secretaries.  She  asked  him  '  if  he  acknowledged  her  for  Queen  ?' 
He  replied  '  not  only  for  Queen,  but  for  his  lawful  Queen'  She  then 
inquired  '  if  he  believed  that  the  Pope  could  excommunicate  her  lawfully  7 
He  answered  '  that  he  was  not  a  sufficient  umpire  to  decide  in  a  controversy 
between  her  Majesty  and  the  Pope.' " — Lingard,  viii.  147. 
1—14. 


2io         REIGN    OF    QUEEN   ELIZABETH.     [1584. 

say  why  you  should  not  die  ?"  Campion  :  "  The  only  thing 
that  we  have  now  to  say  is,  that  if  our  religion  do  make 
us  traitors,  we  are  worthy  to  be  condemned  ;  but  other- 
wise have  been,  and  are,  as  true  subjects  as  ever  the 
Queen  had  any."  Lord  C.  J.  :  "  You  must  go  to  the 
place  from  whence  you  came,  and  from  thence  you  must 
be  drawn  on  a  hurdle  to  the  place  of  execution,  and 
there  hanged  by  the  neck,  but  not  till  you  are  dead," 
&c.,  &c.  "  And  may  the  Lord  convert  you  from  your 
evil  ways,  and  have  mercy  on  your  souls."1 

The  next  state  criminal  was  William  Parry,  indicted 
before  special  commissioners  for  a  plot  to  murder  Queen 
Elizabeth.  He  had  confessed  being  concerned  in  the 
plot,  and  had  given  a  detailed  account  of  it,  but,  having 
been  employed  as  a  spy,  both  by  Burleigh  and  by  the 
Court  of  Rome,  it  is  doubtful  whether,  in  this  instance, 
he  did  not  accuse  himself  falsely.  Upon  his  arraign- 
ment he  pleaded  Guilty,  trusting  to  a  pardon ;  but,  the 
plea  being  recorded,  he  became  frightened,  and  wished 
to  retract  it.  This  indulgence  the  Court  refused,  and 
he  was  asked  why  judgment  of  death  should  not  be 
awarded  against  him : 

Parry :  "  I  see  I  must  die,  because  I  am  not  settled." 
Sir  Christopher  Hatton  (one  of  the  commissioners)  : 
"  What  meanest  thou  by  that  ?"  Parry  :  "  Look  into 
your  study  and  into  your  new  books,  and  you  shall  see 
what  I  mean."  Sir  Christopher :  "  Thou  doest  not  well 
to  use  such  dark  speeches,  unless  thou  would  plainly 
utter  what  thou  meanest  thereby."  Parry  :  "  I  care  not 
for  death  ;  I  will  lay  my  blood  among  you." 

Lord  Chief  Justice  Wray  was  then  called  upon  to  pro- 
nounce the  sentence,  and  spoke  as  follows  : — 

"  Parry,  you  have  been  much  heard,  and  what  you 
mean  by  being  ' settled'  I  know  not ;  but  I  see  that  you 
are  so  settled  in  popery,  that  you  cannot  settle  yourself 
to  be  a  good  subject.  Thou  hast  committed  horrible 
and  hateful  treason  against  thy  most  gracious  Sovereign, 
and  thy  native  country.  The  matter  most  detestable — 
the  manner  most  subtle  and  dangerous.  The  matter 
was  the  destruction  of  a  most  sacred  and  annointed 
Queen,  thy  sovereign  and  mistress ;  yea,  the  overthrow 
1  I  St  Tr.  1049-1088. 


1587-]  CHRISTOPHER     WRAY,  211 

of  thy  country  in  which  thou  wast  born,  and  of  a  most 
happy  commonwealth  whereof  thou  art  a  member.  The 
manner  was  most  subtle  and  dangerous  beyond  all  that 
before  thee  have  committed  any  wickedness  against  her 
Majesty.  For  thou,  making  show  as  if  thou  wouldst 
simply  have  uttered  for  her  safety  the  evils  that  others 
had  contrived,  didst  but  seek  thereby  credit  and  access, 
that  thou  mightest  take  the  after  opportunity  for  her 
destruction.  And  for  the  occasions  and  means  which 
drove  thee  on,  they  were  most  ungodly  and  villainous, 
as  the  persuasions  of  the  Pope,  of  papists,  and  of  popish 
books." 

His  Lordship,  having  indulged  in  a  very  lengthened 
tirade  against  the  Pope,  papists,  and  popish  books, 
pronounced  the  usual  sentence  in  high  treason,  which 
was  executed  a  few  days  after,  although  the  unhappy 
man  declared  that  he  was  in  truth  innocent,  and  had 
only  acted  by  orders  of  the  government  to  entrap 
others.  He  died  unpitied. 

"  neque  enim  lex  ssquior  ulla 

Quam  necis  artifices  arte  perire  sua."1 

Lord  Chief  Justice  Wray  was  named  in  the  commis- 
mission  for  the  trial  of  Anthony  Babington,  and  in  that 
for  the  trial  of  the  Queen  of  Scots  herself;  but  he  did 
not  take  a  leading  part  in  either  of  them,  being  super- 
seded by  the  zeal  of  Sir  Thomas  Bromley,  who  then 
held  the  Great  Seal,  and  of  Sir  Christopher  Hatton, 
who  was  eager  to  hold  it.2 

He  presided  in  the  Star  Chamber,  however,  when  the 
scandalous  mockery  was  exhibited  which  arose  out  of 
the  feigned  resentment  of  Elizabeth  on  account  of  the 
execution  of  Mary.  He  then,  for  some  temporary  con- 
venience, held  the  office  of  Lord  Privy  Seal  as  well  as 
Chief  Justice,  and  so  had  precedence  over  several  peers 
of  high  rank  who  attended.  He  must  have  been  well 
aware  that  Secretary  Davison,  in  sending  off  the  warrant 
for  the  bloody  deed  to  be  done  at  Fotheringay,  acted 
with  the  full  concurrence  of  his  colleagues,  and  in  com- 
pliance with  the  wishes  of  his  royal  mistress  ;  but  he  con- 
ducted the  proceeding  with  all  solemnity,  as  if  a  public 

1 1  St.  Tr.  1095-1112. 

*  I  St.  Tr.  1127.  1167  ;  Lives  of  Chancellors,  vol.  ii.  chaps,  xliv.  xlv. 


aia        REIG-V    OF    QUEEN    ELIZABETH.     [1587. 

functionary  had  acted  in  disobedience  of  orders,  and 
had  thereby  brought  obloquy  upon  the  sovereign  and 
calamity  upon  the  state. 

After  the  invectives  of  the  Attorney-General  and  the 
other  counsel  for  the  Crown,  Davison  mildly  observed 
"  that  the  warrant  having  passed  the  great  seal  by  the 
Queen's  express  orders,  it  was  to  be  executed  as  a  mat- 
ter of  course,  without  further  making  her  privy  to  the 
execution."  Lord  Chief  Justice  Wray  exclaimed,  "  Mr. 
Davison,  to  call  the  warrant  irrevocable  you  are  deceived, 
for  her  Majesty  might  have  revoked  it  at  her  pleasure." 
He  then  required  all  the  councilors  present  to  express 
their  opinion,  beginning  with  the  junior,  Sir  Walter 
Mildmay,  who,  after  enlarging  upon  the  enormity  of  the 
offense,  proposed  for  punishment  a  fine  of  10,000  marks 
and  perpetual  imprisonment.  The  other  councilors,  up 
to  the  Archbishop  of  Canterbury,  having  made  similar 
speeches,  and  approved  of  the  proposed  sentence,  Wray, 
Chief  Justice,  likewise  spoke  in  aggravation,  contending 
that  the  Queen's  express  authority  for  executing  the 
warrant  ought  to  have  been  obtained,  and  that  the  secre- 
tary was  alone  answerable  for  Mary's  death.  Thus  he 
concluded : — 

"  Surely  I  think  you  meant  well,  and  it  was  bomim,  and 
not  bene.  Finally,  I  agree  that  the  punishment  shall  be 
as  it  was  first  of  all  assessed.  But  further  I  must  tell 
you,  that,  for  so  much  as  the  fault  is  yours,  this  prosecu- 
tion declares  her  Majesty's  sincerity,  and  that  she  had  no 
privity  in  your  act,  and  that  she  was  offended  there- 
withal. Further,  my  lords,  I  am  directed  to  signify  to 
you  from  her  Majesty,  that  forasmuch  as  the  son's  rela- 
tion in  telling  them  that  she  was  pleased,  and  what  they 
did  was  for  her  safety,  and  they  be  sorrowful  because 
they  were  abused  by  him,  therefore  her  Majesty  im- 
puteth  no  fault  to  any,  but  only  to  him,  and  the  rest  she 
doth  unburden  of  all  blame."1 

This  is  certainly  one  of  the  most  discreditable  pro- 
ceedings during  the  reign  of  Elizabeth,  and  reflects  much 
disgrace  on  all  concerned  in  it,  except  the  veteran  secre- 
tary Davison  himself,  who  boldly  defended  his  innocence, 
and  exposed  the  duplicity  and  fraud  of  his  persecutors, 
1  I  St.  Tr.  1229-1250. 


1589.]  CHRISTOPHER     WRAY.  213 

although  he  thereby  deprived  himself  of  all  hope  of 
mercy.1 

Lord  Chief  Justice  Wray's  last  appearance  at  a  state 
trial  was  when  the  young  Earl  of  Arundel,  son  .of  the 
Duke  of  Norfolk,  had  been  reconciled  to  his  own  wife 
after  having  been  once  the  lover  of  Elizabeth,  and  was 
therefore  brought  to  trial  on  a  frivolous  charge  of  treason 
for  having  wished  success  to  the  Spanish  Armada.  All 
the  Judges  attended  as  assessors;  and  the  Chief  Justice 
of  the  King's  Bench,  as  their  Coryphaeus,  gave  the  de- 
sired answers  to  the  questions  put  to  them,  for  the  pur- 
pose of  obtaining  a  conviction  ;  this  caused  such  scandal, 
that  Lord  Burghley  and  Sir  Christopher  Hatton  advised 
Elizabeth  against  staining  her  reputation  with  the  blood 
of  the  son  as  well  as  of  the  father,  and  his  life  was  spared, 
although  he  was  detained  in  the  Tower  till  he  died,  after 
an  imprisonment  of  eleven  years.* 

Lord  Chief  Justice  Wray,  between  the  Crown  and  the 
subject,  by  no  means  showed  the  independence  for  which 
he  was  celebrated  between  subject  and  subject ;  yet  his 
partiality  and  subserviency  in  state  trials  did  not  shock 
his  contemporaries,  and  are  rather  to  be  considered  the 
reproach  of  the  age  than  of  the  individual.  Till  Lord 
Coke  arose  in  the  next  generation,  England  can  scarcely 
be  said  to  have  seen  a  magistrate  of  constancy,  who  was 
willing  to  surrender  his  place  rather  than  his  integrity. 
Wray,  upon  the  whole,  was  very  much  respected,  and  he 
held  his  office  with  general  approbation  down  to  the  time 
of  his  death.  Sir  George  Croke,  the  reporter  says,  "  On 
the  last  day  of  Easter  Term,  34  Eliz.,  died  Sir  Christo- 
pher Wray,  Knt.,  Chief  Justice  of  Majesty's  Court  of 
Queen's  Bench, — a  most  revered  Judge,  of  profound  and 
judicial  knowledge,  accompanied  with  a  very  ready  and 
singular  capacity  and  admirable  patience."  ' 

He  left  behind  him  a  son,  who,  in  1612,  was  made  a 
baronet  by  James  I.,  and  the  title  was  inherited  by  his 
descendants  till  the  year  1809,  when  the  male  line  fail- 
ing, it  became  extinct.  I  congratulate  my  readers  that 
we  have  done  with  the  Wrays. 

1  See  his  Apologetical  Discourse  to  Walshingham,  I  St.  Tr.  1259.  In 
truth,  Elizabeth's  only  hesitation  about  sending  off  the  warrant  arose  from  a 
wish  and  a  hope  that  it  might  be  rendered  unnecessary  by  a  private  assassi- 
mtion.  8  I  St.  Tr.  1250.  3  Cro.  Elk.  280. 


CHAPTER  VI. 

CHIEF  JUSTICES  FROM  THE  DEATH  OF  SIR  CHRISTOPHER 
WRAY  TILL  THE  APPOINTMENT  OF  SIR  EDWARD  COKE 
BY  JAMES  I. 

THE  career  of  our  next  hero  is  capable  of  being  made 
amusing  as  well  as  instructive.     Although  at  one 
time  in  the  habit  of  taking  purses  on  the  highway 
— instead  of  expiating  his  offenses  at  Tyburn,  he  lived  to 
pass  sentence  of  death  upon  highwaymen,  and  to  be  a 
terror  to  evil-doers. 

JOHN  POPHAM  was  born  in  the  year  1531,  at  Welling- 
ton, in  the  county  of  Somerset,  a  place  which  is  distin- 
guished as  the  cradle  of  the  Wellesleys,  and  which  the 
great  ornament  of  his  race  and  of  his  country  has  ren- 
dered for  ever  famous  by  taking  from  it  his  title  of  Duke, 
rather  than  from  the  scene  of  any  of  his  glorious  victor- 
ies. He  was  of  gentle  blood,  being  a  young  son  of  a 
family  who,  though  simple  squires  and  of  Saxon  origin, 
had  for  many  generations  been  entitled  to  bear  arms,  and 
who  had  been  settled  on  a  small  estate  at  Huntworth  in 
the  same  county.  While  yet  a  child  he  was  stolen  by  a 
band  of  gypsies,  and  remained  some  months  in  their  so- 
ciety ;  whence  some  pretended  to  account  for  the  irreg- 
ular habits  and  little  respect  for  the  rules  of  property 
which  afterwards  marked  one  period  of  his  life.  His 
captors  had  disfigured  him,  and  had  burnt  on  his  left  arm 
a  cabalistic  mark  which  he  carried  with  him  to  the  grave. 
But  his  constitution,  which  had  been  sickly  before,  was 
strengthened  by  the  wandering  life  he  had  led  with  these 
lawless  associates,  and  he  grew  up  to  be  a  man  of  extra- 
ordinary stature  and  activity  of  body.  We  have  no  ac- 
count of  his  schooling  before  he  was  sent  to  Baliol  Col- 


155 1.]  JOHN    POP  HAM.  215 

lege,  Oxford.  Here  he  was  very  studious  and  well-be- 
haved, and  he  laid  in  a  good  stock  of  classical  learning 
and  of  dogmatic  divinity.  But  when  he  removed  to  the 
Middle  Temple,  that  he  might  qualify  himself  for  the 
profession  of  the  law,  he  got  into  bad  company,  and  ut- 
terly neglected  his  judicial  studies.  He  preferred  thea- 
tres, gaming-houses,  and  other  haunts  of  dissipation,  to 
"  readings"  and  "  moots  ;"  and  once,  when  asked  to  ac- 
company a  friend  to  hear  an  important  case  argued  by 
great  lawyers  in  Westminster  Hall,  he  declared  that  "  he 
was  going  where  he  would  see  disputants  whom  he  hon- 
ored more — to  a  bear-beating  in  Alsatia."  Unfortunately, 
this  was  not,  as  in  a  subsequent  age,  in  the  case  of  young 
Holt,  afterwards  Lord  Chief  Justice,  merely  a  temporary 
neglect  of  discipline — "  a  sowing  of  his  wild  oats"  The 
remonstrances  of  his  family  and  his  friends,  and  the 
scrapes  he  got  into,  had  no  permanent  effect  in  reclaim- 
ing him  ;  and  although  he  sometimes  seemed  resolved  on 
reformation,  and  had  fits  of  application,  he  was  speedily 
again  seduced  by  his  profligate  companions,  and  he  en- 
gaged in  courses  still  more  culpable. 

It  seems  to  stand  on  undoubted  testimony,  that  at 
this  period  of  his  life,  besides  being  given  to  drinking 
and  gaming, — either  to  supply  his  profligate  expenditure, 
or  to  show  his  spirit,  he  frequently  sallied  forth  at  night 
from  a  hostel  in  Southwark,  with  a  band  of  desperate 
characters,  and  that,  planting  themselves  in  ambush  on 
Shooters'  Hill,  or  taking  other  positions  favorable  for 
attack  or  escape,  they  stopped  travelers,  and  took  from 
them  not  only  their  money,  but  any  valuable  commo- 
dities which  they  carried  with  them, — boasting  that  they 
were  always  civil  and  generous,  and  that,  to  avoid 
serious  consequences,  they  went  in  such  numbers  as  to 
render  resistance  impossible.  We  must  remember  that 
this  calling  was  not  then  by  any  means  so  discreditable 
as  it  became  afterwards  ;  that  a  statute  was  made  during 
Popham's  youth  by  which,  on  a  first  conviction  for  rob- 
bery, a  peer  of  the  realm  or  lord  of  parliament  was  en- 
titled to  benefit  of  clergy  "  though  he  cannot  read  /"'  and 
that  the  traditions  were  still  fresh,  of  robberies  having 
been  committed  on  Gad's  Hill  under  the  sanction  of  a 

1 1  Ed.  VI.  c.  12.  s.  14. 


ai6        REIGN  OF  QUEEN  ELIZABETH.      [1551— 

Prince  of  Wales.1  The  extraordinaiy  and  almost  in- 
credible circumstance  is,  that  Popham  is  supposed  to 
have  continued  in  these  courses  after  he  had  been  called 
to  the  bar,  and  when,  being  of  mature  age,  he  was  mar- 
ried to  a  respectable  woman.  At  last,  a  sudden  change 
was  produced  by  her  nnhappiness,  and  the  birth  of  a 
child,  for  whom  he  felt  attachment.  We  have  the  fol- 
lowing account  of  his  reformation  from  Aubrey  :  — 

"  For  severall  yeares  he  addicted  himselfe  but  little  to 
the  studie  of  the  lawes,  but  profligate  company,  and  was 
wont  to  take  a  purse  with  them.  His  wife  considered 
her  and  his  condition,  and  at  last  prevailed  with  him  to 
lead  another  life  and  to  stick  to  the  studie  of  the  lawe, 
which,  upon  her  importunity,  he  did,  beeing  then  about 
thirtie  yeares  old.  He  spake  to  his  wife  to  provide  a 
very  good  entertainment  for  his  camerades  to  take  his 
leave  of  them,  and  after  that  day  fell  extremely  hard  to 
his  studie,  and  profited  exceedingly.  He  was  a  strong, 
stout  man,  and  could  endure  to  sit  at»it  day  and  night ; 
became  eminent  in  his  calling,  had  good  practice,  was 
called  to  be  a  Sergeant  and  a  Judge."2 

Fuller,  always  anxious  to  soften  whatever  appears  dis- 
creditable to  any  of  his  "  Worthies,'1  says  of  Popham, — 

"  In  his  youthful  days  he  was  as  stout  and  skillful  a 
man  at  sword  and  buckler  as  any  in  that  age,  and  wild 
enough  in  his  recreations.  But,  oh  !  if  Quicksilver  could 
really  be  fixed,  to  what  a  treasure  would  it  amount ! 
Such  is  wild  youth  seriously  reduced  to  gravity,  as  by 
this  young  man  did  appear.  He  applied  himself  to  more 
profitable  fencing — the  study  of  the  lawes ;  therein 
attaining  to  such  eminency  that  he  became  the  Queen's 
Attorney,  and  afterwards  Lord  Chief  Justice  of  Eng- 
land.'" 

We  are  not  told,  and  it  would  be  vain  to  conjecture, 
what  means  he  employed  to  redeem  the  time,  and  to 
qualify  himself  for  the  profession  to  which  he .  now 
earnestly  devoted  .himself.  This  we  certainly  know, 
that  he  became  a  consummate  lawyer,  and  was  allowed 
to  be  so  by  Coke,  who  depreciated  all  contemporaries, 

1  If  Popham's  raids  had  been  a  little  later,  they  might  have  been  imputed 
to  the  First  Part  of  Henry  IV.,  which  must  have  had  at  least  as  much  effect 
•s  the  Beggar's  Opera  in  softening  the  horror  excited  by  highway  robbery. 

•  Aubrey,  iii.  492.  »  Vol.  ii.  284. 


I579-]  JOHN    POP  HAM.  ai; 

and  was  accustomed  to  sneer  at  the  "  book  learning  "  of 
Francis  Bacon. 

It  might  be  supposed  that  Popham  would  get  on  par- 
ticularly well  in  the  Crown  Court ;  but, — from  the  dread 
of  encountering  some  of  his  old  associates,  or  for  some 
better  reason, — till  he  was  required,  in  the  discharge  of 
his  official  duty,  to  conduct  public  prosecutions,  he  con- 
fined himself  entirely  to  civil  business ;  and  the  depart- 
ment of  practice  for  which  he  chiefly  laid  himself  out 
was  "  special  pleading,"  or  the  drawing  in  writing  the 
allegations  of  the  plaintiff  and  the  defendant,  till  they 
ended  in  a  demurrer  referring  a  question  of  law  to  the 
judges,  or  in  an  issue  of  fact  to  be  determined  by  a  jury. 
To  add  to  the  gravity  of  his  newly  assumed  character, 
he  was  eager  to  reach  the  dignity  of  the  coif;  and,  after 
some  opposition  on  account  of  the  stories  circulated 
against  him,  in  1571  he  actually  became  Sergeant  Pop- 
ham.  His  feast  was  on  a  scale  of  extraordinary  mag- 
nificence, and  he  furnished  some  very  fine  old  Gascony 
wine,  which  the  wags  reported  he  had  intercepted  one 
night  as  it  was  coming  from  Southampton,  destined  for 
the  cellar  of  an  alderman  of  London. 

However,  in  spite  of  such  jibes,  he  acquired  the  repu- 
tation of  being  very  skillful  in  conducting  real  actions, 
which  were  exclusively  tried  in  the  Court  of  Common 
Pleas,  where  he  now  practiced  ;  and  his  business  steadily 
increased.  He  was  likewise  concerned  in  some  cases  in 
the  Court  of  Wards  and  Liveries  against  the  Crown ; 
and  Elizabeth,  who  had  a  regular  report  made  to  her  of 
all  suits  in  which  her  interests  were  concerned,  ex- 
pressed a  wish  that  he  might  be  taken  into  her  service. 

Accordingly,  when  Sir  Thomas  Bromley,  who  had 
been  long  her  Solicitor  General,  was  promoted  to  be 
Lord  Chancellor,  Popham  succeeded  him  as  Solicitor 
General.  Now  he  was  somewhat  ashamed  of  the  coif, 
of  which  he  was  once  so  proud,  and,  meaning  henceforth 
to  practice  in  the  Court  of  Queen's  Bench,  he  resorted 
to  the  unusual  expedient  of  unsergeanting  or  discoifing 
himself;  so  he  was  once  more  "John  Popham,  Es- 
quire."1 He  gave  high  satisfaction  by  the  manner  in 

1  "  Joh.  Popham  arm  exonerates  de  nomine,  statu  et  gradu  Serv.  ad 
.egem."  Pat.  21  Eliz.  p.  2.  Sergeant  Copley,  when  made  So.icitor-Gen- 


ai8        REIGN    OF    QUEEN    ELIZABETH.     [1581. 

which  he  conducted  the  Queen's  business ;  and  in  the 
beginning  of  the  year  1581  he  was,  on  her  recommenda- 
tion, elected  Speaker  of  the  House  of  Commons.  This 
appointment  was  substantially  in  the  gift  of  the  Gov- 
ernment, and  was  very  often  bestowed  on  the  Solicitor- 
General  for  the  time  being,  the  Attorney-General  at- 
tending as  an  assessor  in  the  House  of  Lords,  and  being 
considered  disqualified  to  sit  as  a  representative  of  the 
people. 

When  the  new  Speaker  demanded  from  the  Queen 
liberty  of  speech  for  the  Commons,  and  their  other 
ancient  privileges,  she  gave  him  an  admonition  "  to  see 
that  they  did  not  deal  or  intermeddle  with  any  matters 
touching  her  person  or  estate,  or  church  or  govern- 
ment."1 

The  very  first  motion  made  was  by  Paul  Wentworth, 
the  Puritan,  for  a  public  fast  to  be  appointed  by  the 
House,  and  for  a  daily  sermon,  so  that,  beginning  their 
proceedings  with  the  service  and  worship  of  God,  He 
might  the  better  bless  them  in  all  their  consultations 
and  actions.  After  a  long  debate,  the  motion  was  car- 
ried by  a  majority  of  115  to  IOO.  The  Queen  was  highly 
incensed  at  this,  which  she  considered  an  encroachment 
on  her  prerogative  as  "  Head  of  the  Church,"  and  rated 
Popham  very  roundly  for  presuming  to  put  the  motion 
from  the  chair.  On  a  subsequent  day  he  addressed  the 
House,  and  said,  "  he  was  very  sorry  for  the  error  that 
had  happened,  in  resolving  to  have  a  public  fast,  and  for 
her  Majesty's  great  misliking  of  the  proceeding.  He 
advised  them  to  send  a  submission  to  her  Majesty,  and 
to  bestow  their  time,  and  endeavor  thereafter  during  the 
session,  in  matters  proper  and  pertinent  for  this  House 
to  deal  in."  He  then  asked  the  question,  "  whether  the 
Vice-Chamberlain  should  carry  their  submission  to  her 
Majesty?"  And  it  was  agreed  to  unanimously.  Mr. 
Vice-Chamberlain  to  the  great  comfort  of  the  Speaker 

eral  and  Attorney-General,  remained  a  Sergeant ;  and  when  become  Lord 
Lyndhurst  and  Lord  Chancellor,  he  wore  the  coif,  and  called  the  Sergeants 
his  "  brothers." 

1  I  Parl.  Hist.  8n.  This  election  of  Speaker  did  not  take  place  at  the 
commencement  of  a  parliament,  but  on  account  of  the  death  of  the  Speakei 
during  the  parliament — an  event  which  dees  not  seem  to  have  happened  be- 
fore, and  which  caused  much  perplexity. 


1585.]  JOHN    POP  HAM.  2i9 

and  of  the  House,  "  brought  answer  of  her  Majesty's 
acceptance  of  the  submission, — expressing  at  the  same 
time  some  anxiety  that  they  should  not  misreport  the 
cause  of  her  misliking,  which  was  not  that  she  objected 
to  fasting  and  prayer,  but  for  the  manner — in  presuming 
to  order  a  public  fast  without  her  privity,  which  was  to 
intrude  upon  her  authority  ecclesiastical."1 

At  the  end  of  the  session  Mr.  Speaker  Popham  pre- 
sented to  the  Queen  all  the  public  bills  passed,  amount- 
ing to  the  unexampled  number  of  fifteen  ;  and  in  a  long 
speech,  in  which  he  explained  and  praised  them,  he 
prayed  the  Queen  graciously  to  assent  to  them,  thus 
concluding — "  I  do  further  most  humbly  beseech  your 
Highness,  in  the  name  and  behalf  of  the  Commons  of 
your  realm,  that  you  will  have  a  vigilant  and  provident 
care  of  the  safety  of  your  most  royal  person  against  the 
malicious  attempts  of  some  mighty  foreign  enemies 
abroad,  and  the  traitorous  practices  of  most  unnatural 
disobedient  subjects  both  abroad  and  at  home,  envying 
the  blessed  and  most  happy  and  quiet  government  of 
this  realm  under  your  Highness,  upon  the  thread  of 
whose  life  only,  next  under  God,  dependeth  the  life  and 
whole  state  and  stay  of  every  your  good  and  dutiful 
subjects."2 

This  was  Popham's  last  parliamentary  effort,  as  he 
never  again  sat  in  the  House  of  Commons,  and  in  the 
House  of  Lords  he  was  condemned  to  silence. 

Soon  after  the  prorogation  he  succeeded  Sir  Gilbert 
Gerrard  as  Attorney-General,  and  had  Sir  Thomas  Eger- 
ton  (afterwards  Lord  Ellesmere)  for  his  Solicitor.  Diffi- 
cult times  came  on,  but  these  law  officers  always  rose 
with  the  occasion,  and  brought  the  important  state 
prosecutions  in  which  they  were  engaged  to  a  fortunate 
issue. 

The  new  Attorney-General  was  called  upon  to  take 
part  in  a  solemnity  which  seems  very  strange  to  us.  In 
that  age,  when  parliament  rarely  met,  and  there  were 
no  newspapers  in  which  ministers  could  give  their  ex- 
planations of  any  public  occurrence,  or  defend  them- 
selves from  any  charge  orally  circulated  against  them,  it 
was  usual  to  have  a  grand  assemblage  in  the  Star  Cham 

1  I  Parl,  Hist.  813.  z  Ibid.  820. 


220        REIGN    OF    QUEEN    ELIZABETH,     [1585. 

her,  to  which  the  nobility,  the  Lord  Mayor  and  alder- 
men of  London,  and  other  notabilities,  were  invited, 
and  then  the  different  members  of  the  government  (with- 
out any  opponent)  made  speeches  in  their  own  justifica- 
tion and  in  their  own  praise.  Henry  Percy,  Earl  of 
Northumberland,  a  Roman  Catholic,  much  attached  to 
the  interests  of  Queen  Mary,  having  been  kept  for 
several  years  a  close  prisoner  in  the  Tower,  had  been 
shot  through  the  head  by  three  slugs,  and  was  found 
dead  in  his  bed  on  the  night  after  his  guard  had  been 
changed  by  the  orders  of  Sir  Christopher  Hatton,  the 
Vice-Chamberlain.  Notwithstanding  a  verdict  by  the 
coroner's  jury  of  felo-de-se,  a  rumor  was  spread,  and  very 
generally  credited,  that  he  had  been  assassinated,  be- 
cause he  was  considered  dangerous  to  the  state,  and 
there  was  no  evidence  upon  which  he  could  be  brought 
to  an  open  trial.  A  meeting  was  accordingly  called  in 
the  Star  Chamber,  attended  by  all  the  great  officers  of 
state,  from  the  Lord  Chancellor  to  the  Vice-Chamber- 
lain ;  and,  says  the  report, — 

"  The  audience  was  very  great  of  knights,  esquires, 
and  men  of  other  'quality.  The  Chancellor  -declared 
that,  lest,  through  the  sinister  means  of  such  persons 
as  be  evil  affected  to  the  present  estate  of  her  Majesty's 
government,  some  bad  and  untrue  conceits  might  be 
had,  as  well  of  the  cause  of  the  Earl's  detainment  as  of 
the  manner  of  his  death,  it  was  thought  necessary  to 
have  the  truth  thereof  made  known  in  that  presence. 
He  therefore  required  her  Majesty's  learned  counsel  to 
deliver  at  large  the  particularities  both  of  the  treasons, 
and  in  what  sort  the  Earl  had  murdered  himself.  Then 
began  John  Popham,  Esq.,  her  Majesty's  Attorney 
General." 

Mr.  Attorney,  not  bound  to  prove  any  of  his  allega- 
tions, and  not  fearing  any  reply,  but  having  it  all  his 
own  way,  proceeds  with  a  lengthened  narrative,  showing 
that  it  was  out  of  the  unexampled  clemency  of  her 
Highness  that  the  deceased  had  not  long  before  been 
convicted  as  a  traitor,  and  that,  from  the  dread  of  a 
public  trial  and  execution,  he  had  died  by  his  own  hand. 

Then  spoke  various  Lords  of  the  Council, — and  the 
whole  case  was  at  last  summed  up  by  Sir  Christopher 


1586.]  JOHN    POP  HAM.  221 

Hatton,  the  suspected  party,  who  having  bitterly  in- 
veighed against  the  deceased  Earl,  declared  : — 

"  That  God  by  his  just  judgment  had  for  his  sins  and 
ingratitude  taken  from  him  his  spirit  of  grace,  and  de- 
livered him  over  to  the  enemy  of  his  soul,  who  brought 
him  to  that  most  dreadful  and  horrible  end  whereunto 
he  is  come ;  from  which  God  of  his  mercy  defend  all 
Christian  people,  and  preserve  the  Queen's  Majesty  from 
the  treasons  of  her  subjects,  that  she  may  live  in  all 
happiness  to  see  the  ruin  of  her  enemies  abroad  and  at 
home  ;  and  that  she  and  we.  her  true  and  loving  sub- 
jects, may  be  always  thankful  to  God  for  all  his  blessings 
bestowed  upon  us  by  her,  the  only  maintenance  of  his 
holy  gospel  among  us."1 

Popham  conducted  the  trials  of  all  those  charged  as 
being  implicated  in  Babbington's  conspiracy,  which  were 
meant  to  prepare  the  public  mind  for  the  trial  of  the 
unhappy  Mary  herself.  I  will  give  a  little  specimen  of 
these  proceedings  from  Tilney  s  case.  The  charge  against 
him  was,  that  he  had  planned  the  murder  of  Queen  Eliza- 
beth in  her  coach.  The  chief  evidence  consisted  of  a 
confession  of  Abington,  an  avowed  accomplice,  in  which 
he  said  that  "  Tilney  was  disposed  to  kill  the  Queen ;" 
and  that  Babbington,  on  his  own  trial,  said  the  day 
before,  "  Tilney  would  have  had  her  Majesty  set  upon  in 
her  coach." 

Tilney.  "  No  !  I  said  not  so  ;  only  at  the  Three  Tuns, 
in  Newgate  Market,  I  said  '  it  might  be  her  Majesty 
might  be  set  upon  in  her  coach,'  and  I  said  no  more. 
But  that  proves  not  I  did  consent."  Popham,  A.  G.  : 
"  You  have  said  enough,  if  we  had  no  other  evidence 
against  you."  Tilney:  "How  so?"  Popham,  A.  G.  : 
11  Because  you  have  confessed  high  treason  ;  your  words 
prove  that  you  were  devising  on  the  manner  of  her 
death."  Tilney:  "I  tell  you  there  is  no  such  matter 
intended  in  my  words.  If  a  servant  which  is  faithful, 
knowing  where  his  master's  money  is,  do  say,  '  If  I  would 
be  a  thief  I  could  rob  my  master,  for  in  such  a  place  his 

Ji  St.  Tr.  Hi  1-1128.  Yet  these  exhibitions  do  not  seem  to  have  had 
much  effect,  for  although  I  believe  this  charge  of  assassination  to  be  un- 
founded, Sir  Walter  Raleigh,  in  a  letter  soon  after  written  to  Sir  Robert 
Cecil,  assumes  it  as  a  fact  known  to  both  of  them,  that  the  Earl  of  Nor- 
thumberland was  murdered  by  the  contrivances  of  Hattin. — Murdin,  8iz. 


222         REIGN    OF    QUEEN    ELIZABETH.     [1588. 

money  is,'  this  proves  not  that  he  would  rob  his  master 
albeit  he  used  such  words.  And  so,  though  I  said,  '  she 
might  be  set  upon  in  her  coach,'  it  proveth  not  that  I 
assented  to  the  same  ;  for  I  protest  before  God  I  never 
intended  any  treason  in  my  life."  Anderson,  C.  J.  (the 
presiding  Judge) :  "  But  if  a  servant,  knowing  where  his 
master's  money  is,  among  thieves  which  are  devising  to 
take  away  the  master's  money,  do  say,  '  this  way  my 
master's  money  may  be  taken,'  and  be  in  view  when  it 
is  taken,  I  say  that  he  is  accessory.  And  you,  Tilney, 
being  amongst  traitors  that  were  devising  how  to  kill 
her  Majesty,  showed  by  what  means  her  Majesty  might 
be  killed.  This  manifestly  proves  your  assent.  There- 
fore, let  the  jury  consider  of  the  evidence." 

Upon  this  summing  up,  a  verdict  of  GUILTY  was  im- 
mediately pronounced,  and  the  prisoner  was  executed.1 

Popham  was  present  in  the  court  at  Fotheringay  dur- 
ing the  trial  of  the  Queen  of  Scots,  but  did  not  interfere 
much  in  the  proceeding,  as  the  part  of  public  prosecutor 
was  acted  in  turn  by  Lord  Chancellor  Bromley,  Lord 
Treasurer  Burleigh,  and  Vice  Chamberlain  Hatton,  who 
were  sitting  as  her  judges.3 

When  poor  Secretary  Davison  (intended  to  be  the 
scape-goat  for  the  sins  of  all  concerned  in  her  death) 
was  brought  before  the  Star  Chamber,  Popham  enlarged 
on  the  enormity  of  his  offense  in  sending  off  the  warrant 
for  her  execution  without  the  Queen's  express  orders, 
although  she  had  signed  it,  and  it  had  passed  the  Great 
Seal  by  her  authority  and  with  her  approbation.8 

The  last  case  in  which  Popham  seems  to  have  been 
concerned  at  the  bar  gives  us  a  lively  idea  of  the  perils 
to  which  public  liberty  was  exposed  in  the  end  of  the 
sixteenth  century.  Sir  Richard  Knightly,  the  repre- 
sentative of  an  ancient  family  in  Northamptonshire,  had 
the  misfortune  to  be  a  Puritan,  and  had  printed  and 
published  in  a  county  town  near  his  residence,  a  pam- 
phlet, explaining  very  temperately  his  religious  notions 
upon  the  proper  observance  of  the  Sabbath,  and  other 
such  subjects.  This  gave  deep  offense  to  the  bishops  ; 
and  the  author  was  prosecuted  in  the  Star  Chamber  for 
it.  Popham  denounced  it  as  a  most  seditious  and  libel- 

1  St.  Tr.  1127-1162.        *  Ibid.  1161-1228.        J  Ibid.  1229. 


1592.]  JOHN    POPHAM.  223 

ous  publication,  "  fit  for  a  vice  in  a  play,  and  no  other," 
but  founded  his  reasoning  chiefly  on  proclamations  issued 
by  her  Majesty  declaring  "  that  no  pamphlet  or  treatise 
should  be  published  till  previously  seen  and  allowed  ; 
and  further,  that  no  printing  shall  be  used  any  where 
but  in  London,  Oxford,  and  Cambridge."  It  was  ad- 
mitted that  for  mere  breach  of  a  royal  proclamation  an 
indictment  could  not  be  supported  in  a  court  of  common 
law ;  but  the  crown  lawyers  asserted,  that  it  was  part  of 
the  royal  prerogative  to  issue  proclamations  on  any  sub- 
ject, for  the  public  good,  and  that  those  proclamations 
might  be  enforced  by  prosecutions  in  the  Star  Chamber. 
Nobody  in  the  Star  Chamber  ventured  to  controvert 
this  doctrine ;  and,  on  the  present  occasion,  the  only 
justification  or  palliation  offered  by  the  defendant  was, 
that  he  had  been  overpersuaded  by  his  wife.  Pvpkam, 
A.  G. :  "  Methinks  he  is  worthy  of  the  greater  punish- 
ment for  giving  such  a  foolish  answer  as  that  he  did  it  at 
his  wife's  desire."  He  escaped  with  a  fine  of  ^2000.' — • 
Such  cases  should  be  borne  in  mind  when  we  measure 
our  gratitude  to  Sir  Edward  Coke,  for  stoutly  denying 
the  legality  of  proclamations  to  alter  the  law  of  the 
land,  and  for  contending  that  disobedience  to  them 
could  not  lawfully  be  made  the  subject  of  a  prosecution 
in  the  Star  Chamber  any  more  than  in  a  court  of  com- 
mon law.  The  proclamation  and  the  prosecution  con- 
joined were  weapons  to  satisfy  any  tyrant,  however 
rancorous  his  hatred  of  liberty,  or  however  eagerly  cov- 
etous of  despotic  power. 

Upon  the  death  of  Sir  Christopher  Wray,  there  was 
some  hesitation  about  the  nomination  of  his  successor. 
Popham  was  an  able  man,  and  had  done  good  service  as 
Attorney-General ;  but  there  was  an  awkwardness,  after 
the  stories  that  were  circulated  about  his  early  exploits, 
in  placing  him  at  the  head  of  the  administration  of  crim- 
inal justice.  Egerton,  the  Solicitor-General,  although  of 
great  learning  and  unexceptional  character,  could  not  de- 
cently have  been  put  over  his  head ;  Coke  was  already 
known  to  be  an  incarnation  of  the  common  law  of  Eng- 
land, but  he  could  not  be  placed  in  such  an  exalted  situ- 
ation without  having  before  served  the  crown,  or  given 
1  St.  Tr.  1263-1272. 


224         ItEIGN    OF    QUEEN    ELIZABETH.    [1592. 

any  sure  earnest  of  sound  political  principles ;  and  Sir 
Edmund  Anderson,  the  Chief  Justice  of  the  Common 
Pleas,  refused  to  give  up  his  "  pillow"  for  the  thorns  of 
the  Queen's  Bench.  None  of  the  puisnies  were  considered 
competent  to  preside  on  a  trial  for  high  treason,  or  to  de- 
liver a  political  harangue  in  the  Star  Chamber.  The 
choice,  therefore,  fell  upon  Popham,  who,  on  the  8th  of 
June,  1592,  received  his  writ  as  Chief  Justice  of  Engiand, 
was  knighted  by  the  Queen  at  Greenwich,  and  was  sworn 
of  the  Privy  Council  along  with  Lord  Keeper  Pucker- 
ing. 

He  held  the  office  fifteen  years,  during  the  end  of  this 
and  the  beginning  of  the  succeeding  reign,  and  he  was 
supposed  to  conduct  himself  in  it  very  creditably  The 
reproach  urged  against  him  was,  extreme  severity  to 
prisoners.  He  was  notorious  as  a  "  hanging  judge."  Not 
only  was  he  keen  to  convict  in  cases  prosecuted  by  the 
Government,  but  in  ordinary  larcenies,  and,  above  all,  in 
highway  robberies,  there  was  little  chance  of  an  acquit- 
tal before  him.  After  a  verdict  of  guilty  in  capital  cases, 
he  uniformly  let  the  law  take  its  course ;  even  in  clergi- 
able  felonies  he  was  very  strict  about  the  "  neck  verse  ;" 
and  those  who  were  most  excusable,  on  account  of  ignor- 
ance, he  saw  without  remorse  led  off  to  the  gallows,  al- 
though if  they  had  been  taught  to  read,  they  would  have 
escaped  with  a  nominal  punishment.  To  such  a  degree 
had  "  damned  custom"  brazed  his  feelings.  Some,  in- 
deed, who  probably  refine  too  much,  have  supposed  that 
he  was  very  desirous  of  showing  to  the  public  that  he 
had  no  longer  any  sympathy  with  those  who  set  the  law 
at  defiance,  and  that  in  this  way  he  thought  he  made 
atonement  to  society  for  the  evil  example  which  formerly 
he  had  himself  set. 

On  the  trial  of  actions  between  party  and  party  he  is 
allowed  by  all  to  have  been  strictly  impartial,  and  to  have 
expounded  the  law  clearly  and  soundly.  There  are  many 
of  his  judgments  in  civil  cases  preserved,  showing  that  he 
well  deserved  the  reputation  which  he  enjoyed,  but  they 
are  all  of  such  a  technical  character  that  they  would  be 
uninteresting,  and  indeed  unintelligible,  to  the  general 
reader.  In  speaking  of  him  farther  as  a  Judge,  I  must, 
therefore,  confine  myself  to  his  appearances  in  the  state 


6oi.]  JOHN    POP  HAM.  225 

trials  which  took  place  while  he  was  Chief  Justice  to 
Elizabeth  and  James. 

The  most  glorious  day  of  his  life  was  Sunday,  the  8th 
of  February,  1601,  when  he  showed  a  courage,  a  pru- 
dence, and  a  generosity  which  ought  for  ever  to  render 
his  name  respectable.  Elizabeth,  in  her  palace  at  White- 
hall, was  informed  that  the  young  Earl  of  Essex  had  mad- 
ly fortified  his  house  on  the  Strand,  and  had  planned  an 
insurrection  in  the  City  of  London.  She  immediately  or- 
dered Chief  Justice  Popham  to  accompany  Ellesmore,  the 
Lord  Keeper,  and  summon  the  rebels  to  surrender.  They 
went  unattended,  except  by  their  mace-bearers.  Essex 
having  complained  of  ill  treatment  from  his  enemies,  the 
Chief  Justice  said  calmly,  "  The  Queen  will  do  impartial 
justice."  He  then,  in  the  Queen's  name,  required  the 
forces  collected  in  the  court-yard  to  lay  down  their  arms 
and  to  depart,  when  a  cry  burst  out  of  "  Kill  them  !  kill 
them !"  The  Earl  rescued  them  from  violence,  but 
locked  them  up  in  a  dungeon,  while  he  himself  sallied 
forth,  in  hopes  of  successfully  raising  the  standard  of  re-  . 
bellion  in  the  City  of  London.  After  being  kept  in  soli- 
tary confinement  till  the  afternoon,  Popham  was  offered 
his  liberty  on  condition  that  the  Lord  Keeper  should  re- 
main behind  as  a  hostage  ;  but  the  gallant  Chief  Justice 
indignantly  refused  this  offer,  and  declared  that  he  would 
share  the  fate  of  his  friend.  At  length,  upon  news  ar- 
riving of  Essex's  failure  in  the  City,  they  were  both 
libaratcd,  and  made  good  their  retreat  to  Whitehall  in  a 
boat. 

The  trial  of  Essex  coming  on  before  the  Lord  High 
Steward  and  court  of  Peers,  Popham  was  both  assessor 
and  witness.  First  a  written  deposition,  signed  by  him, 
was  read,  and  then  he  was  examined  vivd  voce.  He  gave 
his  evidence  with  temperance  and  caution,  affording  a 
striking  contrast  to  the  course  vituperation  of  Coke,  the 
Attorney-General,  and  the  ingenious  sophistry  of  Bacon, 
who  seemed  to  thirst  for  the  blood  of  his  benefactor.1 
Popham,  though  so  severe  against  common  felons, 
was  touched  by  the  misfortune  of  the  high-born  Essex, 
felt  some  gratitude  for  the  tenderness  he  had  experienced 
when  in  his  power,  and  recommended  a  pardon,  which 

1  Camd.  Eliz,  vol.  ii.  225.  321  ;  t  St.  Tr.  1333-1360. 
I—I5. 


126          REIGN    OF    QUEEN   ELIZABETH.     [1602 

would  have  been  extended  to  him  if  the  fatal  ring  had 
duly  reached  the  hands  of  Elizabeth. 

When  Sir  Christopher  Blunt  and  several  other  com- 
moners were  tried  for  being  concerned  in  this  rebellion, 
Chief  Justice  Popham  presided  as  Judge,  and,  at  the 
same  time,  gave  evidence  as  a  witness,  mixing  the  two 
characters  in  a  manner  that  seems  to  us  rather  incon- 
gruous. He  began  with  laying  down  the  law  : — 

Lord  C.  J. — "  Whenever  the  subject  rebelleth  or  riseth 
in  a  forcible  manner  to  overrule  the  royal  will  and 
power  of  the  sovereign,  the  wisdom  and  foresight  of  the 
laws  of  this  land  maketh  this  construction  of  his  actions, 
that  he  intended  to  deprive  the  sovereign  both  of  crown 
and  life.  If  many  do  conspire  to  execute  treason  against 
the  prince  in  one  manner,  and  some  of  them  do  execute 
it  in  another  manner,  yet  their  act,  though  different  in 
the  manner,  is  the  act  of  all  of  them  who  conspire,  by 
reason  of  the  general  malice  of  the  intent." 

Afterwards  he  entered  into  a  dialogue  with  the  wit- 
nesses and  with  the  prisoners  respecting  the  occurrences 
he  had  witnessed  at  Essex  House.  For  example : 
L.  C.  J. — "  Sir  Christopher,  I  should  like  to  know  why 
you  stood  at  the  great  chamber  door,  with  muskets 
charged  and  matches  in  your  hands,  which  I  well  dis- 
cerned through  the  key-hole  ?"  He  repeatedly  put 
similar  questions,  and  gave  his  own  version  of  the  differ- 
ent vicissitudes  of  the  day  till  he  was  liberated.  He 
then  summed  up  to  the  jury,  commenting  on  his  own 
evidence,  and,  after  the  verdict  of  GUILTY,  he  thus  ad- 
dressed the  prisoners : — 

"  I  am  sorry  to  see  any  so  ill  affected  to  the  state  as 
to  become  plotters  and  practicers  against  it.  And  my 
grief  is  the  more  in  this — men  of  worth,  service  and 
learning,  are  the  actors  in  the  conspiracy.  Shall  it  be 
said  in  the  world  abroad  that,  after  forty-three  years' 
peace  under  so  gracious  and  renowned  a  prince,  we  Eng- 
lishmen are  become  weary  of  her  government,  while  she 
is  admired  by  all  the  world  beside  ?  Some  of  you  are 
Christians  ;  and  where,  I  pray  you,  did  you  ever  read  or 
hear  that  it  was  lawful  for  the  subject  to  command  or 
constrain  his  sovereign  ?  It  is  a  thing  against  the  law 
of  God  and  of  all  nations.  Although  your  example  be 


1603.]  JOHN    POP  HAM.  227 

pitiful,  yet  by  this  let  all  men  know  and  learn  how  high 
all  actions  treasonable  do  touch,  and  what  they  tend  to. 
Now  attend  to  the  care  of  your  souls,  to  keep  them 
from  death,  whereof  sin  is  the  cause  ;  and  sin  is  not 
removed  but  by  repentance,  which  being  truly  and 
heartily  performed,  then  follows  what  the  prophet  David 
spake  of,  '  Blessed  are  they  to  whom  God  imputeth  no 
sin.'" 

Finally,  he  pronounced  upon  them  the  revolting 
sentence  in  high  treason,  and  they  were  executed  ac- 
cordingly.1 

On  the  death  of  Queen  Elizabeth,  Popham  joined  in 
acknowledging  the  title  of  the  King  of  Scots  as  lawful 
heir  to  the  throne,  and  he  was  reappointed  to  his  office 
of  Chief  Justice  of  the  King's  Bench  when  the  new  sov- 
ereign arrived  in  London.  We  are  told  that  he  still 
maintained  his  reputation  for  a  strict  enforcement  of 
the  criminal  law,  and  did  not  suffer  the  sword  of  justice 
to  rust  in  its  scabbard. 

"  In  the  beginning  of  the  reign  of  King  James,  Pop- 
ham's  justice  was  exemplary  on  thieves  and  robbers. 
The  land  then  swarmed  with  people  which  had  been 
soldiers,  who  had  never  gotten  (or  quite  forgotten)  any 
other  vocation.  Hard  it  was  for  peace  to  feed  all  the 
idle  mouths  which  a  former  war  did  breed  ;  being  too 
proud  to  beg,  too  lazy  to  labor,  those  infested  the  high- 
ways with  their  felonies  ;  some  presuming  on  their  mul- 
titudes, as  the  robbers  on  the  northern  road,  whose  knot 
(otherwise  not  to  be  untied)  Sir  John  cut  asunder  with 
the  sword  of  Justice."3 

He  presided  at  the  trial  of  Sir  Walter  Raleigh  for 
being  concerned  in  the  plot  to  place  the  Lady  Arabella 
Stuart  on  the  throne  ;  but  the  greatest  part  of  the  dis- 
grace which  then  fell  on  the  administration  of  justice 
was  truly  imputed  to  Sir  Edward  Coke,  the  Attorney- 
General,  who  will  continue  to  be  quoted  to  all  genera- 
tions for  the  brutality  of  character  he  exhibited  in 
vituperating  his  gallant  victim.  The  Chief  Justice  at 
first  tried  to  restore  good  humor  between  the  prisoner 
and  the  public  prosecutor,  by  making  an  apology  for  the 
eagerness  of  both  : — 

1  I  St.  Tr.  1400-1452.  J  Aubrey,  voL  iii.  p.  49* 


228  REIGN    OF     TAMES    I.  [1603. 

Popham,  C.  J.— "  Sir  Walter  Raleigh,  Mr.  Attorney 
speaketh  out  of  the  zeal  of  his  duty  for  the  service  of 
the  King,  and  you  for  your  life  ;  be  valiant  on  both 
sides." 

Afterwards,  when  Coke  behaved  as  if  he  had  con- 
sidered this  an  exhortation  to  insult  the  man  whom  the 
law  still  presumed  to  be  innocent,  Popham  joined  with 
the  other  judges  in  trying  to  repress  him,  till  "  Mr. 
Attorney  sat  down  in  a  chafe,  and  would  speak  no 
more."  Thereupon  they  were  all  afraid  that  the  King 
would  be  displeased,  and  "  they  urged  and  entreated 
him  to  go  on." 

The  rulings  of  Chief  Justice  Popham  at  this  trial 
would  seem  very  strange  in  our  day,  but  in  his  they 
caused  no  surprise  nor  censure.  In  the  first  place,  he 
decided — against  an  able  argument  from  the  prisoner, 
who  conducted  his  own  defense — that,  although  the 
charge  was  high  treason,  it  was  sufficiently  supported  by 
the  uncorroborated  evidence  of  a  single  witness  ;  and, 
secondly,  that  there  was  no  occasion  for  this  witness  to 
be  produced  in  court,  or  sworn,  and  that  a  written  con- 
fession by  him,  accusing  himself  and  implicating  the 
prisoner,  was  enough  to  satisfy  all  the  requisitions  of 
common  and  statute  law  on  the  subject.  Raleigh  still 
urged  that  Lord  Cobham,  his  sole  accuser,  should  be 
confronted  with  him  : — 

Popham,  C.  J.--"  This  thing  cannot  be  granted,  for 
then  a  number  of  treasons  should  flourish  ;  the  accuser 
may  be  drawn  in  practice  whilst  he  is  in  person."  Ra- 
leigh.— "  The  common  trial  in  England  is  by  jury  and 
witnesses."  Popham,  C.  J. — "  If  three  conspire  a  treason, 
and  they  all  confess  it,  here  is  never  a  witness,  and  yet 
they  are  condemned."  Raleigh. — "  I  know  not  how  you 
conceive  the  law."  Popham,  C.  J. — "  Nay,  we  do  not 
conceive  the  law,  but  we  know  the  law."  Raleigh.— 
"  The  wisdom  of  the  law  of  God  is  absolute  and  perfect. 
Hoc  fac  et  vives,  &c.  Indeed,  where  the  witness  is  not 
to  be  had  conveniently,  I  agree  with  you :  but  here  he 
may ;  he  is  alive,  and  under  this  roof.  Susannah  had 
been  condemned  if  Daniel  had  not  cried  out,  '  Will  you 
condemn  an  innocent  Israelite  without  examination  or 
knowledge  of  the  truth  ?'  .  Remember  it  is  absolutely 


1603.]  JOHN    POP  HAM.  239 

the  commandment  of  God  :  '  If  a  false  witness  rise  up, 
you  shall  cause  him  to  be  brought  before  the  judges  ; 
if  he  be  found  false,  he  shall  have  the  punishment  the 
accused  should  have  had.'  It  is  very  easy  for  my  Lord 
to  accuse  me,  and  it  may  be  a  means  to  excuse  himself." 
Pop  ham,  C.  y. — "  There  must  not  such  gap  be  opened 
for  the  destruction  of  the  King  as  there  would  be  if  we 
should  grant  this.  You  plead  hard  for  yourself,  but  the 
laws  plead  as  hard  for  the  King."  Raleigh. — "The 
King  desires  nothing  but  the  knowledge  of  the  truth, 
and  would  have  no  advantage  taken  by  severity  of  the 
law.  If  ever  we  had  a  gracious  King,  now  we  have  ;  I 
hope,  as  he  is,  so  are  his  ministers.  If  there  be  a  trial 
in  an  action  for  a  matter  but  of  five  marks  value,  a  wit- 
ness must  be  produced  and  sworn.  Good  my  Lord,  let 
my  accuser  come  face  to  face,  and  see  if  he  will  call  God 
to  witness  for  the  truth  of  what  he  has  alleged  against 
me."  Pop  ham,  C.  y. — "  You  have  no  law  for  it." 

In  examining  the  mode  in  which  criminal  trials  were 
then  conducted,  it  is  likewise  curious  to  observe  that 
the  practice  of  interrogating  the  accused,  which  our 
neighbors  the  French  still  follow  and  praise,  prevailed  in 
England.  Many  questions  were  put  to  Sir  Walter 
Raleigh  on  this  occasion,  in  the  hope  of  entrapping  him. 
On  account  of  his  great  acuteness,  they  were  rather  of 
service  to  him  ;  but  they  show  how  unequally  this  mode 
of  striving  to  get  at  truth  must  operate,  and  how  easily 
it  may  be  abused.  The  verdict  of  GUILTY  being  re- 
corded, Lord  Chief  Justice  Popham  said, — 

"  I  thought  I  should  never  have  seen  this  day,  Sir 
Walter,  to  have  stood  in  this  place  to  give  sentence  of 
death  against  you ;  because  I  thought  it  impossible  that 
one  of  so  great  parts  should  have  fallen  so  grievously. 
God  hath  bestowed  on  you  many  benefits.  You  had 
been  a  man  fit  and  able  to  have  served  the  King  in  good 
place.  It  is  best  for  a  man  not  to  seek  to  climb  too 
high,  lest  he  fall ;  nor  yet  to  creep  too  low,  lest  he  be 
trodden  on.  It  was  the  poesy  of  the  wisest  and  greatest 
councillor  in  our  time  in  England,  '  /;/  media  spatio  medi- 
ocria  firma  locantur.1  You  have  been  taken  for  a  wise 
man,  and  so  have  shown  wit  enough  this  day.  Two 

1  Posy,  or  motto,  of  Lord  Keeper  Bacon. 


230  REIGN   OF    JAMES   I.  [1606. 

vices  have  lodged  chiefly  in  you  ;  one  is  an  eager  am- 
bition, the  other  corrupt  covetousness.  Your  conceit 
of  not  confessing  anything  is  very  inhuman  and  wicked. 
My  L'jrd  of  Essex,  that  noble  earl  that  is  gone,  vrho,  if 
he  had  not  been  carried  away  by  others,  had  lived  in 
honor  to  this  day  among  us,  confessed  his  offenses,  and 
obtained  mercy  of  the  Lord  ;  for  I  am  verily  persuaded 
in  my  heart  he  died  a  worthy  servant  of  God.  This 
world  is  the  time  of  confessing,  that  we  maybe  absolved 
at  the  day  of  judgment.  You  have  no  just  matter  of 
complaint  that  you  had  not  your  accuser  come  face  to 
face ;  for  such  an  one  is  easily  brought  to  retract  when 
he  secth  there  is  no  hope  of  his  own  life.  It  is  danger- 
ous that  any  traitors  should  have  access  to  or  conference 
with  one  another ;  when  they  see  themselves  must  die, 
they  will  think  it  best  to  have  their  fellow  live,  that  he 
may  commit  the  like  treason  again,  and  so  in  some  sort 
seek  revenge.  Your  case  being  thus,  let  it  not  grieve 
you  if  I  speak  a  little  out  of  zeal  and  love  to  your  good. 
You  have  been  taxed  by  the  world  with  the  defense  *of 
the  most  heathenish  and  blasphemous  opinions,  which  I 
list  not  to  repeat,  because  Christian  ears  cannot  endure 
to  hear  them,  nor  the  authors  and  maintainers  of  them 
be  suffered  to  live  in  any  Christian  commonwealth.  You 
shall  do  well  before  you  go  out  of  the  world  to  give 
satisfaction  therein,  and  not  to  die  with  these  imputa- 
tions upon  you.  Let  not  any  devil  persuade  you  to 
think  there  is  no  eternity  in  heaven  ;  for,  if  you  think 
thus,  you  shall  find  eternity  in  hell  fire." 

Sentence  of  death  was  then  pronounced.  But,  not- 
withstanding Raleigh's  unpopularity  from  the  part 
he  had  taken  against  the  Earl  of  Essex,  the  hard  treat- 
ment he  had  experienced  on  his  trial  excited  such  gen- 
eral sympathy  in  his  favor,  that  his  life  was  spared  for 
the  present ;  and  the  sad  task  was  reserved  to  another 
Chief  Justice,  after  the  lapse  of  many  years,  to  award 
that  the  sentence  should  be  carried  .jnto  execution.1 

Guy  Fawkes,  and  his  associates  implicated  in  the  Gun- 
powder Plot,  were  tried  before  Popham,  but  there  was 
such  clear  evidence  against  them,  that  no  question 
of  law  arose  during  the  trial,  and  we  are  merely  told 
1  2  St.  Tr.  1-62. 


1606.]  JOHN   POPHAM.  231 

that  "  the  Lcrd  Chief  Justice  of  England, — after  a  grave 
and  prudent  relation  and  defense  of  the  laws  made  by 
Queen  Elizabeth  against  recusants,  priests,  and  receivers 
of  priests,  together  with  the  several  occasions,  progresses, 
and  reasons  of  the  same,  and  having  plainly  demon- 
strated and  proved  that  they  were  all  necessary,  mild, 
equal,  and  moderate,  and  to  be  justified  to  all  the  world, 
— pronounced  judgment."1 

Popham's  last  appearance  in  a  case  of  public  interest 
was  upon  the  trial  of  Garnet,  the  Superior  of  the  Jesu- 
its. Against  him  the  evidence  was  very  slender,  and 
the  Chief  Justice  was  obliged  to  eke  it  out  by  unwary 
answers  to  dextrously-framed  interrogatories.  He  suc- 
ceeded so  far  as  to  make  the  prisoner  confess  that  he 
was  aware  of  the  plot  from  communications  made  to 
him  in  the  confessional ;  so  that,  in  point  of  law,  he  was 
guilty  of  misprision  of  treason,  by^not  giving  informa- 
tion of  what  he  had  so  learned :  but  Garnet  still  firmly 
denied  ever  having  taken  any  part  in  the  devising  of  the 
plot,  or  having  in  any  manner  encouraged  it.  At  last, 
he  said  very  passionately — 

"  My  Lord,  I  would  to  God  I  had  never  known  of  the 
Powder  Treason  ;  but,  as  He  is  my  judge,  I  would  have 
stopped  it  if  I  could."  Popkam,  C.  J. :  Garnet,  you  are 
Superior  of  the  Jesuits  ;  and  if  you  forbid,  must  not  the 
rest  obey  ?  Was  not  Greenwell  with  you  half  an  hour 
at  Sir  Everard  Digby's  house  when  you  heard  of  the 
discovery  of  your  treason  ?  And  did  you  not  there  con- 
fer and  debate  the  matter  together  ?  Did  you  not  stir 
him  up  to  go  to  the  rebels  and  encourage  them  ?  Yet 
you  seek  to  color  all  this :  but  that  is  a  mere  shift 
in  you.  Catesby  was  never  far  from  you,  and,  by  many 
apparent  proofs  and  evident  presumptions,  you  were  in 
every  particular  of  this  action,  and  directed  and  com- 
manded the  actors ;  nay,  I  think  verily  you  were  the 
chief  that  moved  it."  Garnet :  "  No,  my  Lord,  I  did 
not."  The  report  adds,  "  Then  it  was  exceedingly  well 
urged  by  my  Lord  Chief  Justice  how  he  writ  his  letters 
for  Winter,  Fawkes,  and  Catesby,  principal  actors  in  this 
matchless  treason,  and  how  he  kept  the  two  bulls  to 
prejudice  the  King,  and  to  do  other  mischief  in  the 

1 a  St.  Tr.  194. 


a32  REIGN    OF    JAMES    I.  [1606. 

realm  ;  and  how  he  afterwards  burnt  them  when  he  saw 
the  King  peaceably  come  in,  there  being  no  hope  to  do 
any  good  at  that  time." 

This  was  only  an  interlocutory  dialogue  during  the 
trial,  and  no  proof  had  been  given  of  the  facts  to  which 
the  Judge,  who  was  supposed  to  be  counsel  for  the  pris- 
oner, had  referred.  His  summing  up  to  the  jury  is  not 
reported ;  and  we  are  only  told  that,  the  verdict  of 
GUILTY  being  found,  "Then  the  Lord  Chief  Justice, 
making  a  pithy  preamble  of  all  the  apparent  proofs  and 
presumptions  of  his  guiltiness,  gave  judgment  that  he 
should  be  drawn,  hanged,  and  quartered."  '  There  was 
a  strong  temptation  to  all  who  desired  Court  favor  to 
show  extraordinary  zeal  on  this  occasion,  for  the  fate  of 
Garnet  had  excited  deep  interest  all  over  Europe, — and 
the  King  himself,  a  large  number  of  the  nobility,  and 
many  members  of  the  House  of  Commons  were  present 
at  the  trial. 

Popham,  who  had  heretofore  retained  wonderful  vigor, 
both  of  body  and  mind,  was  soon  after  struck  by  a  mor- 
tal disease,  and,  on  the  1st  of  June,  1607,  he  expired,  in 
the  seventy-second  year  of  his  age.  According  to  the 
directions  left  in  his  will,  he  was  buried  at  Wellington, 
the  place  of  his  nativity. 

I  believe  that  no  charge  could  justly  be  made  against 
his  purity  as  a  judge ;  yet,  from  the  recollection  of  his 
early  history,  some  suspicion  always  hung  about  him, 
and  stories,  probably  quite  groundless,  were  circulated 
to  his  disadvantage.  Of  these,  we  have  a  specimen  in 
the  manner  in  which  he  was  said  to  have  become  the 
owner  of  Littlecote  Hall,  which  in  a  subsequent  age  was 
the  headquarters  of  the  Prince  of  Orange,  and  which 
Macaulay  describes  as  "  a  manor  house,  renowned  down 
to  our  own  times,  not  more  on  account  of  its  venerable 
architecture  and  furniture,  than  on  account  of  a  horrible 
and  mysterious  crime  which  was  perpetrated  there  in  the 
days  of  the  Tudors."5  The  earliest  narrative  that  I  find 

1  2  St.  Tr.  217-358. 

1  History  of  England,  ii.  542.  In  the  notes  to  the  5th  canto  of  ROKEBY, 
there  is  an  interesting  account  of  the  appearance  which  the  place  now  pre- 
sents, and  which  is  probably  exactly  the  same  which  it  presented  when  it 
was  occupied  by  Lord  Chief  Justice  Popham  : — "  Littlecote  House  stands 
in  a  low  and  lonely  situation.  It  Is  an  irregular  building  of  great  antiquity, 


1606.]  JOHN    POP  HAM.  233 

of  this  atrocity,  and  of  Lord  Chief  Justice  Popham's 
connection  with  it,  is  by  Aubrey  : 

"  Sir  Richard  Dayrell,  of  Littlecott,  in  com.  Wilts, 
having  got  his  lady's  waiting,  woman  with  child,  when 
her  travell  came  sent  a  servant  with  a  horse  for  a  mid- 
wife, whom  he  was  to  bring  hoodwinked.  She  was 
brought,  and  layd  the  woman  ;  but  as  soon  as  the  child 
was  borne,  she  saw  the  knight  take  the  child  and  mur- 
ther  it,  and  burn  it  in  the  fire  in  the  chamber.  She 
having  done  her  business  was  extraordinarily  rewarded 
for  her  paines,  and  went  blindfold  away.  This  horrid 
action  did  run  much  in  her  mind,  and  she  had  a  desire 
to  discover  it,  but  knew  not  where  'twas.  She  consid- 
ered with  herself  the  time  she  was  riding,  and  how  many 
miles  she  might  have  rode  at  that  rate  in  that  time,  and 
that  it  must  be  some  great  person's  house,  for  the  roome 
was  twelve  foot  high  ;  and  she  should  know  the  chamber 
if  she  sawe  it.  She  went  to  a  justice  of  peace,  and  search 
was  made.  The  very  chamber  found.  The  knight  was 
brought  to  his  tryall ;  and,  to  be  short,  this  Judge 
had  this  noble  house,  parke,  and  manor,  and  (I  thinke) 
more,  for  a  bribe  to  save  his  life.  Sir  John  Popham 
gave  sentence  according  to  lawe,  but  being  a  great  per- 
son and  a  favorite,  he  procured  a  noli  prosequi"  l 

and  was  probably  erected  about  the  time  of  the  termination  of  feudal  war- 
fare, when  defense  came  no  longer  to  be  an  object  in  a  country  mansion. 
Many  circumstances,  however,  in  the  interior  of  the  house,  seem  appropriate 
to  feudal  times.  The  hall  is  very  spacious,  floored  with  stones,  and  lighted 
by  large  transom  windows.  Its  walls  are  hung  with  old  military  accoutre- 
ments that  have  long  been  left  a  prey  to  rust.  At  one  end  of  the  hall  is  a 
range  of  coats  of  mail  and  helmets,  and  there  is  on  every  side  abundance 
of  old-fashioned  pistols  and  guns,  many  of  them  with  matchlocks.  Imme- 
diately below  the  cornice  hangs  a  row  of  leathern  jerkins,  made  in  the  form 
of  a  shirt,  supposed  to  have  been  worn  as  armor  by  the  vassals.  A  large 
oak  table,  reaching  nearly  from  one  end  of  the  room  to  the  other,  might 
have  feasted  the  whole  neighborhood,  and  an  appendage  to  one  end  of  it 
made  it  answer  at  other  times  for  the  good  old  game  of  shuffle-board.  The 
rest  of  the  furniture  is  in  a  suitable  style,  particularly  an  arm-chair  of  cum- 
brous workmanship,  constructed  of  wood,  with  a  high  back  and  triangular 
seat,  said  to  have  been  used  by  Judge  Popham  in  the  reign  of  Elizabeth.  In 
one  of  the  bedchambers,  which  you  pass  in  going  to  the  long  gallery  hung 
with  portraits  in  the  Spanish  dresses  of  the  i6th  century,  is  a  bedstead  with 
blue  furniture,  which  time  has  now  made  dingy  and  threadbare,  and  in  the 
bottom  of  one  of  the  bed  curtains  you  are  shown  a  place  where  a  small 
piece  has  been  cut  out  and  sewn  in  again,  serving  to  identify  the  same  with 
the  horrible  story  belonging  to  it." 

1  Aubrey,  iii.  493.     Subsequent  writers  have  no  better  ground  to  proceed 


234  REIGN    OF    JAMES   /.  [1606. 

Popham's  portrait  represented  him  as  "  a  huge,  heavy, 
ugly  man ;  and  I  am  afraid  he  would  not  appear  to  great 
advantage  in  a  sketch  of  his  moral  qualities,  which,  lest 
I  should  do  him  injustice,  I  shall  not  attempt.  In  fair- 
ness, however,  I  ought  to  mention  that  he  was  much 
commended  in  his  own  time  for  the  number  of  thieves 
and  robbers  he  convicted  and  executed  ;  and  it  was  ob- 
served that,  "  if  he  was  the  death  of  a  few  scores  of 

upon,  and  it  would  be  unfair  to  load  the  memory  of  a  judge  with  the  ob- 
loquy of  so  great  a  crime  upon  such  unsatisfactory  testimony.  Walter  Scott 
publishes  the  following  version  of  the  story,  "  exactly  as  told  in  the  coun- 
try : — "  It  was  on  a  dark  night  in  the  month  of  November,  that  an  old  mid- 
wife sat  musing  by  her  cottage  fireside,  when  on  a  sudden  she  was  startled 
by  a  loud  knocking  at  the  door.  On  opening  it  she  found  a  horseman,  who 
told  her  that  her  assistance  was  required  immediately  by  a  person  of  rank, 
and  that  she  should  be  handsomely  rewarded,  but  that  there  were  reasons 
for  keeping  the  affair  a  strict  secret,  and  therefore  she  must  submit  to  be 
blindfolded,  and  to  be  conducted  in  that  condition  to  the  bedchamber  of 
the  lady.  With  some  hesitation  the  midwife  consented ;  the  horseman 
bound  her  eyes,  and  placed  her  on  a  pillion  behind  him.  After  proceeding 
in  silence  for  many  miles,  through  rough  and  dirty  lanes,  they  stopped,  and 
the  midwife  was  led  into  a  house,  which,  from  the  length  of  her  walk 
through  the  apartments,  as  well  as  the  sounds  about  her,  she  discovered  to 
be  the  seat  of  wealth  and  power.  When  the  handage  was  removed  from 
her  eyes,  she  found  herself  in  a  bedchamber,  in  which  were  the  lady  on 
whose  account  she  had  been  sent  for,  and  a  man  of  a  haughty  and  ferocious 
aspect.  The  lady  was  delivered  of  a  fine  boy.  Immediately,  the  man  com- 
manded the  midwife  to  give  him  the  child,  and,  catching  it  from  her,  he 
hurried  across  the  room  and  threw  it  on  the  back  of  the  fire  that  was  blazing 
in  the  chimney.  The  child,  however,  was  strong,  and  by  its  struggles  rolled 
itself  off  upon  the  hearth,  when  the  ruffian  again  seized  it  with  fury,  and,  in 
spite  of  the  intercession  of  the  midwife,  and  the  more  piteous  entreaties  of 
the  mother,  thrust  it  under  the  grate,  and,  raking  the  live  coals  upon  it,  soon 
put  an  end  to  its  life.  The  midwife,  after  spending  some  time  in  affording  all 
the  relief  in  her  power  to  the  wretched  mother,  was  told  that  she  must 
be  gone.  Her  former  conductor  appeared,  who  again  bound  her  eyes,  and 
conveyed  her  behind  him  to  her  own  home  ;  he  then  paid  her  handsomely 
and  departed.  The  midwife  was  strongly  agitated  by  the  horrors  of  the 
preceding  night,  and  she  immediately  made  a  deposition  of  the  fact  before 
a  magistrate.  Two  circumstances  afforded  hopes  of  detecting  the  house  in 
which  the  crime  had  been  committed  :  one  was,  that  the  midwife,  as  she 
sat  by  the  bed-side,  had,  with  a  view  to  discover  the  place,  cut  out  a  piece  of 
the  bed  curtain  and  sewn  it  in  again  ;  the  other  was,  that,  as  she  descended 
the  staircase,  she  had  counted  the  steps.  Some  suspicion  fell  upon  one  Dar- 
rell,  at  that  time  the  proprietor  of  Littlecote  House  and  the  domain  around 
it.  The  house  was  examined  and  identified  by  the  midwife,  and  Darrell 
was  tried  at  Salisbury  for  the  murder.  By  corrupting  the  judge  he  escaped 
the  sentence  of  the  law,  but  broke  his  neck  by  a  fall  from  his  horse,  in  hunt- 
ing, in  a  few  months  after.  The  place  whese  this  happened  is  still  known 
by  the  name  of  '  Barrel's  stile,'  and  is  dreaded  by  the  peasant  whom  the 
shades  of  evening  have  overtaken  on  his  way." 

Walter  Scott  founds  a  beautiful  ballad  on  this  legend,  but — instead  of  a 


1606.]  JOHN   POPHAM.  235 

such  gentry,  he  preserved  the  lives  and  livelihoods  of 
more  thousands  of  travelers,  who  owed  their  safety  to  this 
Judge's  severity."  ! 

Popham  is  to  be  reckoned  among  the  English  Judges 
who  were  authors,  having  compiled  a  volume  of  Reports 
of  his  decisions  while  he  was  Chief  Justice  of  the  King's 
Bench,  beginning  in  the  34th  &  35th  of  Elizabeth.  Be- 
ing originally  in  French,  an  English  translation  of  them 
was  published  in  the  year  1682,  but  they  are  wretchedly 
ill  done,  and  they  are  not  considered  of  authority.  We 
should  have  been  much  better  pleased  if  he  had  given  us 
an  account  of  his  exploits  when  he  was  chief  of  a  band 
of  freebooters. 

He  left  behind  him  the  greatest  estate  that  ever  had 
been  amassed  by  any  lawyer — some  said  as  much  £10,000 
a  year ;  but  as  it  was  not  supposed  to  be  all  honestly 
come  by,  and  he  was  reported  even  to  have  begun  to 
save  money  when  "  the  road  did  him  justice,"  there  was 
a  prophesy  that  it  would  not  prosper,  and  that  "  what 
was  got  over  the  Devil's  back  would  be  spent  under  his 
belly."  Accordingly,  we  have  the  following  account  of 
his  son  John  : — "  He  was  the  greatest  house-keeper  in 
England  ;  would  have  at  Littlecote  four  or  five  or  more 
lords  at  a  time.  His  wife,  who  had  been  worth  to  him 
£6,000,  was  as  vain  as  he,  and  sayd  '  that  she  had  brought 
such  an  estate,  and  she  scorned  but  she  would  live  as 
high  as  he  did  ;'  and  in  her  husband's  absence  would 
have  all  the  woemen  of  the  countrey  thither,  and  feaste 

midwife,  skilled  in  the  obstetric  art,  to  assist  the  lady — introduces  a  more 
poetical  character,  "  a  friar  of  orders  gray,"  to  shrive  her,  and  he  sacrifices 
the  mother  instead  of  the  child, — without  saying  a  word  of  the  trial  before 
Popham.  I  copy  the  last  three  stanzas : — 

"  The  shrift  is  done,  the  friar  is  gone 

Blindfolded  as  he  came : 
Next  morning  all  in  Littlecote  Hall 

Were  weeping  for  their  dame. 
44  Wild  Darrell  is  an  altered  man ; 

The  village  crones  can  tell, 
He  looks  pale  as  clay,  and  strives  to  pray, 

If  he  hears  the  convent  bell. 
4  If  prince  or  peer  cross  Darrell's  way, 

He'll  beard  him  in  his  pride — 
If  he  meets  a  friar  of  orders  gray, 

He  droops  and  turns  aside." 
1  Aubrey  iii.  498. 


236  REIGN    OF    JAMES    I.  [1594. 

them,  and  make  them  drunke,  as  she  would  be  herselfe. 
They  both  dyed  by  excesse  and  by  luxury ;  and  by 
cosenage  of  their  servants,  when  he  dyed,  there  was  a 
hundred  thousand  pounds  in  debt.  This  was  his  epi- 
taph :— 

"  Here  lies  he  who  not  long  since 
Kept  a  table  like  a  prince, 
Till  death  came  and  tooke  him  awaye, 
Then  ask't  the  old  man  W fiat's  to  pay?'* 

The  family  retained  a  remnant  of  the  Chief  Justice's 
possessions  at  Littlecote  for  two  or  three  generations, 
and  then  became  extinct. 


The  next  Chief  Justice  of  England  affords  a  striking 
proof  that  though  dullness  be  often  considered  an  apti- 
tude for  high  office,  the  elevation  which  it  procures  will 
not  confer  lasting  fame.  The  greatest  part  of  my  read- 
ers never  before  read  or  heard  of  the  name  of  THOMAS 
FLEMING  ;  yet,  starting  in  the  profession  of  the  law  with 
FRANCIS  BACON,  he  was  not  only  preferred  to  him  by 
attorneys,  but  by  prime  ministers,  and  he  had  the  high- 
est professional  honors  showered  upon  him  while  the  im- 
mortal philosopher,  orator,  and  fine  writer  continued  to 
languish  at  the  bar  without  any  advancement,  notwith- 
standing all  his  merits  and  all  his  intrigues.  But  Flem- 
ing had  superior  good  fortune,  and  enjoyed  temporary 
consequence,  because  he  was  a  mere  lawyer, — because  he 
harbored  no  ideas  or  aspirations  beyond  the  routine  of 
Westminster  Hall — because  he  did  not  mortify  the  van- 
ity of  the  witty,  or  alarm  the  jealousy  of  the  ambitious. 

He  was  the  younger  son  of  a  gentleman  of  small  estate 
in  the  Isle  of  Wight.  I  do  not  find  any  account  of  his 
early  education,  and  very  little  interest  can  now  be  felt 
respecting  it,  although  we  catch  so  eagerly  at  any  trait 
of  the  boyhood  of  his  rival,  whom  he  despised."  Soon 
after  he  was  called  to  the  bar,  by  unwearied  drudgery  he 
got  into  considerable  practice  ;  and  it  was  remarked  that 
he  always  tried  how  much  labor  he  could  bestow  upon 

1  Aubrey,  iii.  494. 

*  He  probably  had  not  an  academical  education,  as  on  the  7th  of  August, 
1613,  it  was  ordered  by  the  Convocation  of  the  University  of  Oxford  "  that 
Sir  Thomas  Flemming,  Lord  Chief  Justice  of  England,  be  created  M.  of  A." 
— 2  Wood's  Atk.  Ox,  355. 


I594-]  THOMAS    FLEMING.  237 

every  case  intrusted  to  him,  while  his  more  lively  com- 
petitors tried  with  how  little  labor  they  could  creditably 
perform  their  duty.1 

In  the  end  of  the  year  1594  he  was  called  to  the  de- 
gree of  sergeant,  along  with  eight  others,  and  was  thought 
to  be  the  most  deeply  versed  in  the  law  of  real  actions 
of  the  whole  batch.  It  happened  that,  soon  after,  there 
was  a  vacancy  in  the  office  of  the  Solicitor-General,  on 
the  promotion  of  Sir  Edward  Coke  to  be  Attorney-Gen- 
eral. Bacon  moved  heaven  and  earth  that  he  himself 
might  succeed  to  it.  He  wrote  to  his  uncle,  Lord  Treas- 
urer Burleigh,  saying,  "  I  hope  you  will  think  I  am  no 
unlikely  piece  of  wood  to  shape  you  a  true  servant  of." 
He  wrote  to  the  Queen  Elizabeth,  saying,  "  I  affect  my- 
self to  a  place  of  my  profession,  such  as  I  do  see  divers 
younger  in  proceeding  to  myself,  and  men  of  no  great 
note,  do  without  blame  aspire  unto  ;  but  if  your  Majesty 
like  others  better,  I  shall,  with  the  Lacedimonian,  be 
glad  that  there  is  such  choice  of  abler  men  than  myself." 
He  accompanied  this  letter  with  a  valuable  jev/el,  to  show 
off  her  beauty.  He  did  what  he  thought  would  be  still 
more  serviceablefc  and,  indeed,  conclusive  ;  he  prevailed 
upon  the  young  Earl  of  Essex,  then  in  the  highest  favor 
with  the  aged  Queen,  earnestly  to  press  his  suit.  But 
the  appointment  was  left  with  the  Lord  Treasurer,  and 
he  decided  immediately  against  his  nephew,  who  was  re- 
ported to  be  no  lawyer,  from  giving  up  his  time  to  pro- 
fane learning — who  had  lately  made  an  indiscreet  though 
eloquent  speech  in  the  House  of  Commons — and  who,  if 
promoted,  might  be  a  dangerous  rival  to  his  cousin,  Rob- 
ert Cecil,  then  entering  public  life,  and  destined  by  his 
sire  to  be  prime  minister.  The  cunning  old  fox  then  in- 
quired who  would  be  a  competent  person  to  do  the 
Queen's  business  in  her  courts,  and  would  give  no  un- 
easiness elsewhere ;  and  he  was  told  that  by  several 
black-letter  Judges  whom  he  consulted,  that  "  Sergeant 
Fleming  was  the  man  for  him."  After  the  office  had 
been  kept  vacant  by  these  intrigues  above  a  year,  Sergeant 

1  He  appears,  however,  to  have  been  long  unknown  beyond  the  precincts 
of  Westminster  Hall.  In  Fleetwood's  Diary,  cited  in  Wright's  Queen  Eliza- 
beth, ii.  418,  there  is  the  following  entry  under  date  loth  August,  1592  : — 
"  This  day  Mr.  Recorder  surrendered  his  office  ;  the  lot  is  now  to  be  cast  be- 
tween Mr.  Sergeant  Druce  and  one  Mr.  Flemmynge  of  Lincoln's  Inn" 


238  REIGN    OF    JAMES    I.  [1602. 

Fleming  was  actually  appointed.  Bacon's  anguish  was 
exasperated  by  comparing  himself  with  the  new  Soli- 
citor; and,  in  writing  to  Essex,  after  enumerating  his 
own  pretensions,  he  says,  "  when  I  add  hereunto  the  ob- 
scureness  and  many  exceptions  to  my  competitor,  I  can- 
not but  conclude  with  myself  that  no  man  ever  had  a 
more  exquisite  disgrace."  He  resolved  at  first  to  shut 
himself  up  for  the  rest  of  his  days  in  a  cloister  at  Cam- 
bridge. A  soothing  message  from  the  Queen  induced 
him  to  remain  at  the  bar ;  but  he  had  the  mortification 
to  see  the  man  whom  he  utterly  despised  much  higher 
in  the  law  than  himself,  during  the  remainder  of  this,  and 
a  considerable  part  of  the  succeeding  reign. 

Fleming,  immedately  upon  his  promotion,  gave  up  his 
sergeantship,  and  practiced  in  the  Court  of  Queen's 
Bench.1  He  was  found  very  useful  in  doing  the  official 
business,  and  gave  entire  satisfaction  to  his  employers. 

At  the  calling  of  a  new  parliament,  in  the  autumn  of 
1601,  he  was  returned  to  the  House  of  Commons  for  a 
Cornish  borough  ;  and,  according  to  the  usual  practice  at 
that  time,  he  ought,  as  Solicitor-General,  to  have  been 
elected  Speaker ;  but  his  manner  was  too  "  lawyer-like 
and  ungenteel"  for  the  chair,  and  Sergeant  Croke,  who 
was  more  presentable,  was  substituted  for  him. 

He  opened  his  mouth  in  the  House  only  once,  and 
then  he  broke  down.  This  was  in  the  great  debate  on 
the  grievance  of  monopolies.  He  undertook  to  defend 
the  system  of  granting  to  individuals  the  exclusive  right 
of  dealing  in  particular  commodities ;  but,  when  he  had 
described  the  manner  in  which  patents  passed  through 
the  different  offices  before  the  Great  Seal  is  put  to  them, 
he  lost  his  recollection,  and  resumed  his  seat. 

Bacon,  now  member  for  Middlesex,  to  show  what  a 
valuable  Solicitor-General  the  Government  had  lost, 
made  a  very  gallant  speech,  in  which  he  maintained  that 
"  the  Queen,  as  she  is  our  sovereign,  hath  both  an  enlarg- 
ing and  restraining  power ;  for,  by  her  prerogative,  she 
may,  1st,  set  at  liberty  things  restrained  by  statute  law 
or  otherwise ;  and,  2ndly,  by  her  prerogative  she  may 
restrain  things  which  be  at  liberty."  He  concluded 

1  Tho.  Fleming  a  statu  et  gradu  servientis  ad  legem  exonerates.  T.  R. 
apud  Westm.  5  Nov.  Pat.  37  Eliz.  p.  9. — Dug.  CAron.  Ser.  99- 


1604.]  THOMAS    FLEMING.  239 

by  expressing  the  utmost  horror  of  introducing  any  bill 
to  meddle  with  the  powers  of  the  crown  upon  the  sub- 
ject, and  protesting  that  "  the  only  lawful  course  was  to 
leave  it  to  her  Majesty  of  her  own  free  will  to  correct  any 
hardships,  if  any  had  arisen  in  the  exercise  of  her  just 
rights  as  the  arbitress  of  trade  and  commerce  in  the  realm." 

This  pleased  her  exceedingly,  and  even  softened  her 
ministers,  insomuch  that  a  promise  was  given  to  promote 
Fleming  as  soon  as  possible,  and  to  appoint  Bacon  in  his 
place.  In  those  days  there  never  existed  the  remotest 
notion  of  dismissing  an  Attorney  or  Solicitor-General,  any 
more  than  a  Judge  ;  for  though  they  all  alike  held  during 
pleasure,  till  the  accession  of  the  House  of  Stuart  the  ten- 
ure of  all  of  them  was  practically  secure.  An  attempt  was 
made  to  induce  Fleming  to  accept  the  appointment  of 
Queen's  Sergeant,  which  would  have  given  him  prece- 
dence over  the  Attorney-General  ;  but  this  failed,  for  he 
would  thereby  have  been  considered  as  put  upon  the 
shelf,  instead  of  being  on  the  highway  to  promotion. 

Elizabeth  died,  leaving  Bacon  with  no  higher  rank 
than  that  of  Queen's  Counsel ;  and,  on  the  accession  of 
James  I.,  Fleming  was  reappointed  Solicitor-General. 

The  event  justified  his  firmness  in  resisting  the  at- 
tempt to  shelve  him,  for  in  the  following  year,  on  the 
death  of  Sir  William  Peryam,  he  was  appointed  Chief 
Baron  of  the  Exchequer.  While  he  held  this  office,  he 
sat  along  with  Lord  Chief  Justice  Popham  on  the  trial  of 
Guy  Fawkes  and  the  Gunpowder  conspirators  ;  but  he 
followed  the  useful  advice  for  subordinate  judges  on  such 
an  occasion  — "  to  look  wise,  and  say  nothing." 

His  most  memorable  judgment  as  Chief  Baron  was  in 
what  is  called  "  The  Great  Case  of  Impositions."  This 
was,  in  truth,  fully  as  important  as  Hampden's  Case  of 
Ship-money,  but  did  not  acquire  such  celebrity  in  his- 
tory, because  it  was  long  acquiesced  in,  to  the  destruc- 
tion of  public  liberty,  whereas  the  other  immediately 
produced  the  civil  war.  After  an  act  of  parliament  had 
passed  at  the  commencement  of  James's  reign,  by  which 
an  import  duty  of  2s.  6d.  per  cwt.  was  imposed  upon 
currants,  he  by  his  own  authority  laid  on  an  additional 
duty  of  /.$•.  6d.,  making  icxr.  per  cwt.  Bates,  a  Levant 
merchant,  who  had  imported  a  cargo  of  currants  from 


24o  REIGN    OF    JAMES    I.  [1604. 

Venice,  very  readily  paid  the  parliamentary  duty  of  2s. 
6d.  upon  it,  but  refused  to  pay  more ;  thereupon  the 
Attorney-General  filed  an  information  in  the  Court  of 
Exchequer,  to  compel  him  to  pay  the  additional  duty 
of  75.  6d.;  so  the  question  arose,  whether  he  was  by  law 
compellable  to  do  so  ?  After  arguments  at  the  bar  which 
lasted  many  days, — 

Fleming,  C.  B.,  said  ;  "  The  defendant's  plea  in  this 
case  is  without  precedent  or  example,  for  he  alleges  that 
the  imposition  which  the  King  has  laid  is  '  indebit&,  in- 
juste-  et  contra  leges  Angliae  imposita,  and,  therefore,  he 
refused  to  pay  it.'  The  King,  as  is  commonly  said  in 
our  books,  cannot  do  ivrong  ;  and  if  the  King  seize  any 
land  without  cause,  I  ought  to  sue  to  him  in  humble 
manner  (huinillime  supplicavit,  &c.),  and  not  in  terms  of 
opposition.  The  matter  of  the  plea  first  regards  the 
prerogative,  and  to  derogate  from  that  is  a  part  most 
undutiful  in  any  subject.  Next  it  concerns  the  trans- 
port of  commodities  into  and  out  of  the  realm,  the  due 
regulation  of  which  is  left  to  the  King  for  the  public 
good.  The  imposition  is  properly  upon  currants  and 
not  upon  the  defendant,  for  upon  him  no  imposition 
shall  be  but  by  parliament.  The  things  are  currants,  a 
foreign  commodity.  The  King  may  restrain  the  person 
of  a  subject  in  leaving  or  coming  into  the  realm,  and  h 
fortiori,  may  impose  conditions  on  the  importation  or 
exportation  of  his  goods.  To  the  King  is  committed 
the  government  of  the  realm,  and  Bracton  says,  '  that 
for  his  discharge  of  his  office  God  hath  given  him  the 
power  to  govern.'  This  power  is  double — ordinary  and 
absolute.  The  ordinary  is  for  the  profit  of  particular 
subjects — the  determination  of  civil  justice ;  this  is 
nominated  by  civilians  jus  privatum,  and  it  cannot  be 
changed  without  parliament.  The  absolute  power  of 
the  King  is  applied  for  the  general  benefit  of  the  people  ; 
it  is  most  properly  named  policy,  and  it  varieth  with  the 
time,  according  to  the  wisdom  of  the  King,  for  the  com- 
mon good.  If  this  imposition  is  matter  of  state,  it  is  to 
be  ruled  by  the  rules  of  policy,  and  the  King  hath  done 
well,  instead  of  '  unduly,  unjustly,  and  contrary  to  the 
laws  of  England.'  All  commerce  and  dealings  with 
foreigners,  like  war  and  peace  and  public  treaties,  are 


1604.]  JAMES    FLEMING.  a^x 

regulated  and  determined  by  the  absolute  power  of  the 
King.  No  importation  or  exportation  can  be  but  at  the 
King's  ports.  They  are  his  gates,  which  he  may  open 
or  close  when  and  on  what  conditions  he  pleases.  He 
guards  them  with  bulwarks  and  fortresses,  and  he  pro- 
tects ships  coming  hither  from  pirates  at  sea ;  and  if  his 
subjects  are  wronged  by  foreign  princes,  he  sees  that 
they  are  righted.  Ought  he  not,  then,  by  the  customs 
he  imposes,  to  enable  himself  to  perform  these  duties? 
The  impost  to  the  merchant  is  nothing,  for  those  who 
wish  for  his  commodities  must  buy  them  subject  to  the 
charge ;  and,  in  most  cases,  it  shall  be  paid  by  the 
foreign  grower  and  not  by  the  English  consumer.  As 
to  the  argument  that  the  currants  are  victual,  they  are 
rather  a  delicacy,  and  are  no  more  necessary  than  wine, 
on  which  the  King  lays  such  customs  as  seemeth 
him  good.  For  the  amount  of  the  imposition  it  is  not 
unreasonable,  seeing  that  it  is  only  four  times  as  much 
as  it  was  before.  The  wisdom  and  providence  of  the 
King  must  not  be  disputed  by  the  subject ;  by  intend- 
ment  they  cannot  be  severed  from  his  person.  And  to 
argue  a  posse  ad  actuin,  because  by  his  power  he  may  do 
ill,  is  no  argument  to  be  used  in  this  place.  If  it  be  ob- 
jected that  no  reason  is  assigned  for  the  rise,  I  answer, 
it  is  not  reasonable  that  the  King  should  express  the 
cause  and  consideration  of  his  actions ;  these  are  arcana 
regiSj  and  it  is  for  the  benefit  of  every  subject  that  the 
King's  treasure  should  be  increased." 

He  then  at  enormous  length  went  over  all  the  authori- 
ties and  acts  of  parliament,  contending  that  they  all 
prove  the  King's  power  to  lay  what  taxes  he  pleases  on 
goods  imported,  and  he  concluded  by  giving  judgment 
for  the  Crown.1 

Historians  take  no  notice  of  this  decision,  although  it 
might  have  influenced  the  destinies  of  the  country  much 
more  than  many  of  the  battles  and  sieges  with  which 
they  fill  their  pages.  Had  our  foreign  commerce  then 
approached  its  present  magnitude,  parliaments  would 
never  more  have  met  in  England, — duties  on  tea,  sugar, 
timber,  tobacco,  and  corn,  imposed  by  royal  proclama- 
tion, being  sufficient  to  fill  the  exchequer, — and  the  ex- 

1  a  St  Tr.  371-394. 
i— 16. 


a43  REIGN    OF    JAMES    7.  [1607— 

periment  of  ship-money  would  never  have  been  neces- 
sary. The  Chief  Baron  most  certainly  misquotes,  mis- 
represents, and  mystifies  exceedingly  ;  but,  however  fal- 
lacious his  reasoning,  the  judgment  ought  not  to  be 
passed  over  in  silence  by  those  who  pretend  to  narrate 
our  annals,  for  it  was  pronounced  by  a  court  of  compe- 
tent jurisdiction,  and  it  was  acted  upon  Tor  years  as  set- 
tling the  law  and  constitution  of  the  country. 

King  James  declared  that  Chief  Baron  Fleming  was 
a  judge  to  his  heart's  content.  He  had  been  somewhat 
afraid  when  he  came  to  England  that  he  might  hear  such 
unpalatable  doctrines  as  had  excited  his  indignation  in 
Buchanan's  treatise  "  De  jure  regni  apud  Scotis,"  and 
he  expressed  great  joy  in  the  solemn  recognition  that 
he  was  an  absolute  sovereign.  Our  indignation  should 
be  diverted  from  him  and  his  unfortunate  son,  to  the 
base  sycophants,  legal  and  ecclesiastical,  who  misled  them. 

On  the  death  of  Popham,  no  one  was  thought  so  fit 
to  succeed  him  as  Fleming,  of  whom  it  was  always  said 
that  "  though  slow,  he  was  sure  ;"  and  he  became  Chief 
Justice  of  England  the  very  same  day  on  which  Francis 
Bacon  mounted  the  first  step  of  the  political  ladder,  re- 
ceiving the  comparatively  humble  appointment  of  So- 
licitor-General.1 

Lord  Chief  Justice  Fleming  remained  at  the  head  of 
the  common  law  rather  more  than  six  years.  During 
that  time,  the  only  case  of  general  interest  which  arose 
in  Westminster  Hall,  was  that  of  the  POSTNATI.  As 
might  be  expected,  to  please  the  King,  he  joined  cor- 
dially in  what  I  consider  the  illegal  decision,  that  per- 
sons born  in  Scotland  after  the  accession  of  James  to 
the  throne  of  England  were  entitled  to  all  the  privileges 
of  natural-born  subjects  in  England,  although  it  was 
allowed  that  Scotland  was  an  entirely  separate  and  inde- 
pendent kingdom.  Luckily,  the  question  is  never  likely 
again  to  arise  since  the  severance  of  the  crown  of 
Hanover  from  that  of  Great  Britain  ;  but  if  it  should, 
I  do  not  think  that  Calvin's  case  could  by  any  means  be 
considered  a  conclusive  authority,  being  founded  upon 
such  reasoning  as  that  "  if  our  King  conquer  a  Christian 
country,  its  laws  remain  till  duly  altered  ;  whereas  if  he 

1  I  Dug.  Chron.  Ser.  102. 


1613.]  JAMES    FLEMING.  243 

conquer  an  infidel  country,  the  laws  are  ipso  facto  extinct, 
and  he  may  massacre  all  the  inabitants."1 

Lord  Chief  Justice  Fleming  took  the  lead  in  the  pros- 
ecution of  the  Countess  of  Shrewsbury,  before  the 
Privy  Council,  on  the  charge  of  having  refused  to  be 
examined  respecting  the  part  she  had  acted  in  bringing 
about  a  clandestine  marriage  in  the  Tower  of  London, 
between  the  Lady  Arabella  Stuart,  the  King's  cousin, 
and  Sir  William  Somerset,  afterwards  Duke  of  Somer- 
set. He  laid  it  down  for  law,  that  "  it  was  a  high  mis- 
demeanor to  marry,  or  to  connive  at  the  marriage  of, 
any  relation  of  the  King  without  his  consent,  and  that 
the  Countess's  refusal  to  be  examined  was  a  contempt 
of  the  King,  his  crown,  and  dignity,  which,  if  it  were  to  go 
unpunished,  might  lead  to  many  dangerous  enterprises 
against  the  state."  He  therefore  gave  it  as  his  opinion, 
that  she  should  be  fined  ;£  10,000,  and  confined  during 
the  King's  pleasure." 

While  this  poor  creature  presided  in  the  King's  Bench, 
he  was  no  doubt  told  by  his  officers  and  dependents 
that  he  was  the  greatest  Chief  Justice  that  had  appeared 
there  since  the  days  of  Gascoigne  and  Fortescue  ;  but 
he  was  considered  a  very  small  man  by  all  the  rest  of  the 
world,  and  he  was  completely  eclipsed  by  Sir  Edward 
Coke,  who  at  the  same  time  was  Chief  Justice  of  the 
Common  Pleas,  and  who,  to  a  much  more  vigorous  in- 
tellect and  deeper  learning,  added  respect  for  constitu- 
tional liberty  and  resolution  at  every  hazard  to  maintain 
judicial  independence.  From  the  growing  resistance  in 
the  nation  to  the  absolute  maxims  of  government  pro- 
fessed by  the  King  and  sanctioned  by  almost  all  his 
Judges,  there  was  a  general  desire  that  the  only  one  who 
stood  up  for  law  against  prerogative  should  be  placed  in 
a  position  which  might  give  greater  weight  to  his 
efforts  on  the  popular  side  ;  but  of  this  there  seemed  no 
prospect,  for  the  subservient  Fleming  was  still  a  young 
man,  and  likely  to  continue  many  years  the  tool  of  the 
Government. 

In  the  midst  of  these  gloomy  anticipations,  on  the 
1 5th  day  of  October,  1613,  the  joyful  news  was  spread 
of  his  sudden  death.  I  do  not  know,  and  I  have  taken 

1  2  St.  Tr.  559-769  '  2  St.  Tr.  765-778. 


244  REIGN  OF    JAMES    I.  [1613. 

no  pains  to  ascertain,  where  he  was  buried,  or  whether 
he  left  any  descendants.  In  private  life  he  is  said  to 
have  been  virtuous  and  amiable,  and  the  discredit  of  his 
incompetency  in  high  office  ought  to  be  imputed  to 
those  who  placed  him  there,  instead  of  allowing  him  to 
prose  on  as  a  drowsy  sergeant  at  the  bar  of  the  Common 
Pleas,  the  position  for  which  nature  had  intended  him.1 
He  dwindled  the  more  rapidly  to  insignificance  from  the 
splendor  of  his  immediate  successor. 

1  I  have  since  learned  (but  it  is  not  worth  while  to  alter  the  text)  that  he 
was  buried  at  Stoneham  in  Hampshire  ;  that  his  will,  dated  2ist  July,  1610, 
was  proved  soth  October,  1613  ;  that  his  eldest  son  intermarried  with  a 
daughter  of  Sir  Henry  Cromwell,  and  that  their  descendants  remained 
seated  at  Stoneham  for  some  generations.  The  Chief  Justice  appears  to 
have  had  a  residence  in  the  Isle  of  Wight.  The  name  of  "  Sir  Thomas 
Fleming,  L.  C.  J.  of  England,"  appears  in  the  list  of  the  members  of  a 
Bowling  Green  Club  established  in  the  island,  who  dined  together  twice  a 
week.  (Worsley's  Isle  of  Wight,  p.  223.) 


LORD   COKE. 


CHAPTER  VII. 

LIFE  OF  SIR  EDWARD  COKE,   FROM   HIS  BIRTH  TILL 

HE  WAS  MADE  CHIEF  JUSTICE  OF  THE 

COURT  OF  COMMON  PLEAS. 

WE  now  come  to  him  who  was  pronounced  by  his 
contemporaries,  and  is  still  considered,  the 
greatest  oracle  of  our  municipal  jurisprudence, 
— who  afforded  a  bright  example  of  judicial  independ- 
ence,— and  to  whom  we  are  indebted  for  one  of  the 
main  pillars  of  our  free  constitution.  Unfortunately, 
his  mind  was  never  opened  to  the  contemplations  of 
philosophy ;  he  had  no  genuine  taste  for  elegant  litera- 
ture ;  and  his  disposition  was  selfish,  overbearing,  and 
arrogant.  From  his  odious  defects,  justice  has  hardly 
been  done  to  his  merits.  Shocked  by  his  narrow-minded 
reasoning,  disgusted  by  his  utter  contempt  for  method 
and  for  style  in  his  compositions,  and  sympathizing  with 
the  individuals  whom  he  insulted,  we  are  apt  to  forget 
that  "  without  Sir  Edward  Coke  the  law  by  this  time 
had  been  like  a  ship  without  ballast  ;>M  that1  when  all 
the  other  Judges  basely  succumbed  to  the  mandate  of  a 
Sovereign  who  wished  to  introduce  despotism  under  the 
forms  of  juridical  procedure,  he  did  his  duty  at  the  sacri- 
fice of  his  office  ;  and  that,  in  spite  of  the  blandishments, 
the  craft,  and  the  violence  of  the  Court  of  Charles  I., 
he  framed  and  he  carried  the  PETITION  OF  RIGHT, 
which  contained  an  ample  recognition  of  the  liberties  of 
Englishmen — which  bore  living  witness  against  the  law- 
less tyranny  of  the  approaching  government  without 
parliaments — which  was  appealed  to  with  such  success 
when  parliaments  were  resumed,  and  which,  at  the  Rev- 

1  Words  of  Lord  Bacon. 


246        REIGN  OF  QUEEN  ELIZABETH.      [1551-2. 

olution  in  1688,  was  made  the  basis  of  the  happy  settle- 
ment then  permanently  established.  It  shall  be  my 
object  in  this  memoir  fairly  to  delineate  his  career  and 
to  estimate  his  character. 

SIR  EDWARD  COKE,  like  most  of  my  Chief  Justices, 
was  of  a  good  family  and  respectable  connections.  The 
early  Chancellors,  being  taken  from  the  Church,  were 
not  unfrequently  of  low  origin ;  but  to  start  in  the  pro- 
fession of  the  law  required  a  long  and  expensive  educa- 
tion, which  only  the  higher  gentry  could  afford  for  their 
sons.  The  Cokes  had  been  settled  for  many  generations 
in  the  county  of  Norfolk.  As  the  name  does  not  corre- 
spond very  aptly  with  the  notion  of  their  having  come 
over  with  the  Conqueror,  it  has  been  derived  from  the 
British  word  "  Cock,"  or  "  Coke,"  a  CHIEF  ;  but,  like 
"  Butler,"  "  Taylor,"  and  other  names  now  ennobled,  it 
much  more  probably  took  its  origin  from  the  occupation 
of  the  founder  of  the  race  at  the  period  when  surnames 
were  first  adopted  in  England.  Even  in  the  reigns  of 
Elizabeth  and  James  I.,  Sir  Edward's  name  was  fre- 
quently spelled  Cook.  Lady  Hatton,  hig  second  wife, 
who  would  not  assume  it,  adopted  this  spelling  in  writ- 
ing to  him,  and  according  to  this  spelling  it  has  in- 
variably been  pronounced.1  Camden  has  traced  the 
pedigree  of  the  family  to  William  Coke  of  Doddington, 
in  Norfolk,  in  the  reign  of  King  John.  They  had  risen 
to  considerable  distinction  under  Edward  III.,  when  Sir 
Thomas  Coke  was  made  Seneschal  of  Gascoigne.  From 
him,  in  the  right  male  line,  was  descended  Robert  Coke, 
the  father  of  Sir  Edward.  This  representative  of  the 
family,  although  possessed  of  good  patrimonial  prop- 
erty, was  bred  to  the  law  in  Lincoln's  Inn,  and  practiced 
at  the  bar  till  his  death,  having  reached  the  dignity  of  a 
bencher.  He  married  Winifred  Knightley,  daughter 
and  co-heiress  of  William  Knightley,  of  Margrave 
Knightley,  in  Norfolk.  With  her  he  had  an  estate  at 
Mileham,  in  the  same  county,  on  which  he  constantly 
resided,  unless  in  term  time  and  during  the  circuits. 

Here,  on  the  1st  of  February,  1551-2,  was  born  Ed- 

1  It  is  amusing  to  observe  the  efforts  made  to  disguise  the  names  of  trades 
in  proper  names,  by  changing  i  into  y,  by  adding  a  final  e,  and  by  doubling 
consonants. 


1567.]  EDWARD     COKE.  ,47 

ward,  their  only  son.  He  came  into  the  world  unex- 
pectedly, at  the  parlor  fire-side,  before  his  mother  could 
be  carried  up  to  her  bed ;  and,  from  the  extraordinary 
energy  which  he  then  displayed,  high  expectations  were 
entertained  of  his  future  greatness.1  This  infantine  ex- 
ploit he  was  fond  of  narrating  in  his  old  age. 

His  mother  taught  him  to  read,  and  he  ascribed  to 
her  tuition  the  habit  of  steady  application  which  stuck 
to  him  through  life.  In  his  tenth  year  he  was  sent  to 
the  free  grammar  school  at  Norwich.  He  had  been 
here  but  a  short  time  when  he  had  the  misfortune  to 
lose  his  father,  who  died  in  Lincoln's  Inn,  and  was 
buried  in  the  church  of  St.  Andrew,  Holborn."  His 
mother  married  again  ;  but  his  education  was  most  suc- 
cessfully continued  by  Mr.  Walter  Hawe,  the  head 
master  of  his  school,  under  whom  he  continued  seven 
years,  and  made  considerable  proficiency  in  classical 
learning.  He  was  more  remarkable,  however,  for  mem- 
ory than  imagination,  and  he  had  as  much  delight  in 
cramming  the  rules  of  prosody  in  doggerel  verse  as  in 
perusing  the  finest  passages  of  Virgil. 

He  had  reached  his  sixteenth  year  before  he  went  to 
the  University — a  late  age,  according  to  the  custom  of 
that  time ;  but  he  afterwards  considered  it  a  great  ad- 
vantage that  he  never  " preproperously "  entered  on 
study  or  business.  On  the  25th  of  October,  1567,  he 
was  admitted  a  pensioner  of  Trinity  College,  Cambridge. 
We  learn  nothing  from  himself  or  others  of  the  course 
of  study  which  he  pursued.  Whitgift,  afterwards  Arch- 
bishop of  Canterbury,  is  said  to  have  been  his  tutor,  and 
he  was  no  doubt  well  drilled  in  the  dialectics  of  Aris- 
totle ;  but  he  never  displays  the  slightest  tincture  of 
science,  and,  unlike  Bacon,  who  came  to  the  same  col- 

1  "  Prxidicabat  miri  quidpiam  ejus  Genitura ;  Matrem  ita  subito  juxta 
focum  intercipiens  et  in  thalamum  cui  suberat  non  moveretur.  Locum 
ipsura  ipse  mihimet  demonstravit." — Spelm.  Icenia  sive  N&rfokia,  p.  150. 

*  Sir  Edward,  when  Attorney-General,  caused  a  monument  to  be  erected 
there  to  his  memory,  with  an  inscription  beginning  thus : — 

"  Monumentum  Koberti  Coke  de  Mileham,  in  Comitatu  Norfolcioe  Armig. 
Illustriss.  Hospitii  Lincolniensis  quondam  socii  Primarii :  Qui  ex  Wine- 
frida  uxore  sua,  Gul.  Knightley  filia,  hos  suscepit  liberos :  Edwardum 
Coke,  filium,  Majestatis  Regue  Attornatuin  General,  &c. 

"  Obiit  in  Hospitio  prsedicto  15  die  Nov.  A.  I).  1561,  Eliz.  4.  Etat.  suae 
48." 


«48         REIGN    OF    QUEEN    ELIZABETH.    [1572. 

lege  a  few  years  after  him,  and,  while  still  a  boy,  medi- 
tated the  reformation  of  philosophy,  he  seems  never  to 
have  carried  his  thoughts  beyond  existing  institutions 
or  modes  of  thinking,  and  to  have  labored  only  to  com- 
prehend and  to  remember  what  he  was  taught.  He  had 
a  much  better  opinion  than  Bacon  of  the  academical 
discipline  which  then  prevailed,  and  in  after  life  he 
always  spoke  with  gratitude  and  reverence  of  his  ALMA 
MATER.  Yet  he  left  Cambridge  without  taking  a  de- 
gree. 

It  might  have  been  expected  that  he  would  now  have 
resided  in  his  country  mansion, — amusing  himself  with 
hunting,  hawking,  and  acting  as  a  Justice  of  the  Peace. 
But  the  family  estates  were  charged  with  his  mother's 
jointure  and  portions  for  his  seven  sisters ;  and,  as  he 
was  early  imbued  with  ambition  and  a  grasping  love  of 
riches,  he  resolved  to  follow  the  profession  of  the  law, 
in  which  his  father  was  prospering  when  prematurely 
cut  off.  He  therefore  transferred  himself  to  London, — 
not,  like  other  young  men  of  fortune,  to  finish  his  edu- 
cation at  an  Inn  of  Court,  frequenting  fencing-schools 
and  theatres, — but  with  the  dogged  determination  to 
obtain  practice  as  a  barrister,  that  he  might  add  to  his 
paternal  acres,  and  rise  to  be  a  great  judge. 

He  began  his  legal  studies  at  Clifford's  Inn,  an  "  Inn 
of  Chancery,"  where,  for  a  year,  he  was  initiated  in  the 
doctrine  of  writs  and  procedure ;  and  on  the  24th  of 
April,  1572,  he  was  entered  a  student  of  the  Inner 
Temple,  where  he  was  to  become  familiar  with  the  pro- 
foundest  mysteries  of  jurisprudence.  He  now  steadily 
persevered  in  a  laborious  course,  of  which,  in  our  de- 
generate age,  we  can  scarcely  form  a  conception.  Every 
morning  he  rose  at  three, — in  the  winter  season  lighting 
his  own  fire.  He  read  Bracton,  Littleton,  the  Year 
Books,  and  the  folio  Abridgments  of  the  Law,  till  the 
courts  met  at  eight.  He  then  went  by  water  to  West- 
minster, and  heard  cases  argued  till  twelve,  when  pleas 
ceased  for  dinner.  After  a  short  repast  in  the  Inner 
Temple  Hall,  he  attended  "  readings  "  or  lectures  in  the 
afternoon,  and  then  resumed  his  private  studies  till  five, 
or  supper  time.  This  meal  being  ended,  the  moots  took 
place,  when  difficult  questions  of  law  were  proposed  and 


1578.]  EDWARD     COKE.  249 

discussed, — if  the  weather  was  fine,  in  the  garden  by  the 
river  side ;  if  it  rained,  in  the  covered  walks  near  the 
Temple  Church.  Finally,  he  shut  himself  up  in  his 
chamber,  and  worked  at  his  common-place  book,  in 
which  he  inserted,  under  the  proper  heads,  all  the  legal 
information  he  had  collected  during  the  day.  When 
nine  o'clock  struck  he  retired  to  bed,  that  he  might 
have  an  equal  portion  of  sleep  before  and  after  mid- 
night. The  Globe  and  other  theatres  were  rising  into 
repute,  but  he  never  would  appear  at  any  of  them  ;  nor 
would  he  indulge  in  such  unprofitable  reading  as  the 
poems  of  Lord  Surrey  or  Spenser.  When  Shakspeare 
and  Ben  Jonson  came  into  such  fashion,  that  even  "  sad 
apprentices  of  the  law  "  occasionally  assisted  in  masques, 
and  wrote  prologues,  he  most  steadily  eschewed  all  such 
amusements ;  and  it  is  supposed  that  in  the  whole 
course  of  his  life  he  never  saw  a  play  acted,  or  read  a 
play,  or  was  in  company  with  a  player. 

He  first  evinced  his  forensic  powers  when  deputed  by 
the  students  to  make  a  representation  to  the  Benchers 
of  the  Inner  Temple  respecting  the  bad  quality  of  their 
commons  in  the  hall.  After  laboriously  studying  the 
facts  and  the  law  of  the  case,  he  clearly  proved  that  the 
cook  had  broken  his  engagement,  and  was  liable  to  be 
dismissed.  This,  according  to  the  phraseology  of  the 
day,  was  called  "the  Cook's  Case"  and  he  was  said  to 
have  argued  it  with  so  much  quickness  of  penetration  and 
solidity  of  judgment,  that  he  gave  entire  satisfaction  to 
the  students,  and  was  much  admired  by  the  Bench."  ' 

At  this  time  the  rules  of  the  Inns  of  Court  required 
that  a  student  should  have  been  seven  years  on  the 
books  of  his  society  before  he  could  be  called  to  the  bar,' 
but  our  hero's  proficiency  in  his  legal  studies  was  so  won 
derful,  that  the  Benchers  of  the  Inner  Temple  resolved 
to  make  an  exception  in  his  favor,  and  on  the  2Oth  of 
April,  1578,  called  .him  to  the  bar  when  he  was  only  of 
six  years'  standing. 

His  progress  in  his  profession  was  almost  as  rapid  as 
that  of  Erskine,  200  years  afterwards ;  but,  instead  of 

*  See  Lloyd's  Worthies,  ii.  189. 

J  Formerly  the  period  had  been  eight  years  :  Dug.  Or.  Jus,  159.     Now  (I 

think  not  wisely)  it  is  reduced  to  three. 


«5o          REIGN    OF    QUEEN   ELIZABETH.     [1580. 

being  the  result  of  popular  eloquence,  it  arose  from  a 
display  of  deep  skill  in  the  art  of  special  pleading.  He 
himself  has  reported  with  much  glee  the  case  in  which 
he  held  his  first  brief.  Lord  Cromwell,  son  of  the  fa- 
mous Cromwell,  Earl  of  Essex,  the  grand  ecclesiastical  re- 
former, had  become  leader  of  the  Puritans,  and  wished 
to  abolish  all  liturgies.  He  accordingly  introduced  into 
his  parish  church  (Norlingham,  in  Norfolk),  where  he 
expected  to  meet  with  no  opposition,  two  unlicensed 
preachers  of  the  Genevese  school,  who  denounced  the 
Book  of  Common  Prayer  as  impious  and  superstitious. 
The  Reverend  Mr.  Denny,  the  vicar,  remonstrating, 
Lord  Cromwell  said  to  him,  "  Thou  art  a  false  varlet,  and 
I  like  not  of  thee."  Upon  which  the  vicar  retorted,  "  It 
is  no  marvel  that  you  like  not  of  me,  for  you  like  of  men 
who  maintain  sedition  against  the  Queen's  proceedings." 
For  these  words  Lord  Cromwell  brought  an  action  of 
SCAN.  MAG.  against  the  Vicar ;  and  the  eclat  with  which 
young  Edward  Coke  had  just  been  called  to  the  bar  hav- 
ing reached  his  own  country,  he  was  retained  as  counsel 
for  the  defendant.  He  drew  a  very  ingenious  plea  of 
justification,  but  on  demurrer  it  was  held  to  be  insuffi- 
cient. He  then  moved  in  arrest  of  judgment  by  reason 
of  a  mis-recital  in  the  declaration  of  the  statute  De  Scan- 
dalis  Magnatum,  on  which  the  action  was  founded  ;  and, 
after  a  very  learned  argument,  he  obtained  the  judgment 
of  the  Court  in  his  favor.1 

Soon  after,  he  was  appointed,  by  the  Benchers  of  the 
Inner  Temple,  Reader  of  Lyon's  Inn,  an  Inn  of  Chancery 
under  their  rule.  Here  he  lectured  to  students  of  law 
and  attorneys,  with  much  applause,  and  so  spread  forth 
his  fame,  that  crowds  of  clients  sued  to  him  for  his  coun- 
sel.*" 

He  filled  this  office  three  years,  and  before  the  end  of 
that  period  he  had  placed  himself  at  the  very  head  of  his 
profession,  by  his  argument  in  the  most  celebrated  case 
that  has  ever  occurred  respecting  the  law  of  real  prop- 
erty in  England, — a  case  now  read  with  far  more  inter- 
est, by  true  conveyancers,  not  only  than  MACBETH  or 
COMUS,  but  than  "  the  Judgment  on  Ship  Money"  or 

1  The  Lord  Cromwell's  case,  4  Rep.  12  b. 
•  Lloyd's  State  Worthies. 


1580.]  EDWARD     COKE.  -51 

"  the  Trial  of  the  Seven  Bishops."  Edward  Shelley,  be- 
ing seized  in  tail  general,  had  two  sons,  Henry  and  Rich- 
ard. Henry  died,  leaving  a  widow  enceinte.  Edward 
suffered  a  recovery  to  the  use  of  himself  for  life,  remain- 
der to  the  use  of  the  heirs  male  of  his  body  and  the  heirs 
male  of  such  heirs  male,  and  died  before  his  daughter-in- 
law  was  delivered.  Richard,  the  younger  son,  as  the 
only  heir  male  in  esse,  entered.  The  widow  then  gave 
birth  to  a  son  ;  and  the  great  question  was,  whether  he 
had  a  right  to  the  estate  rather  than  Richard  his  uncle  ? 
It  was  an  acknowledged  rule,  that  the  title  of  one  who 
takes  by  purchase  cannot  be  divested  by  the  birth  of  a 
child  after  his  interest  has  vested  in  possession  ;  but  that 
the  estate  of  one  who  takes  by  descent,  may.  The  point 
therefore,  was,  "  whether  Richard,  under  the  uses  of  the 
recovery,  took  by  purchase  or  by  descent  ?"  The  case 
excited  so  much  interest  at  the  time,  that  by  the  special 
order  of  Queen  Elizabeth,  it  was  adjourned  from  the 
Court  of  Queen's  Bench,  where  it  arose,  into  the  Excheq- 
uer Chamber,  before  the  Lord  Chancellor  and  the  twelve 
Judges.  Coke  was  counsel  for  the  nephew,  and  suc- 
ceeded in  establishing  the  celebrated  rule,  that  "  Where 
the  ancestor  takes  an  estate  of  freehold,  and  in  the  same 
gift  or  conveyance  an  estate  is  limited,  either  mediately, 
or  immediately,  to  his  heirs  either  in  fee  or  in  tail,  '  heirs' 
is  a  word  of  limitation,  so  that  the  ancestor  has  in  him  an 
estate  of  inheritance,  and  the  heir  takes  by  descent."  ' 

Coke  was  thenceforth,  while  he  remained  at  the  bar, 
employed  in  every  case  of  importance  which  came  on  in 
Westminster  Hall,  and  he  was  in  the  receipt  of  an  im- 
mense income,  which  gave  him  a  greater  power  of  buy- 
ing land  than  is  enjoyed  even  by  an  eminent  railway 
counsel  at  the  present  day.  He  began  to  add  manor  to 
manor,  till  at  length  it  is  said  the  crown  was  alarmed 
lest  his  possessions  should  be  too  great  for  a  subject. 
According  to  a  tradition  in  the  family, — in  consequence 
of  a  representation  from  the  government,  which  in 
those  times  often  interfered  in  the  private  concerns  of 
individuals,  that  he  was  monopolizing  injuriously  all 

1  This  rule  has  ever  since  been  rigorously  adhered  to,  except  by  the  Court 
of  King's  Bench  in  Perrin  v.  Blake  ;  and  that  decision  was  reversed  in  the 
Exchequer  Chamber. — 4  Burr.  2579  ;  Bl.  Rep.  672  ;  Dougl.  329. 


252     REIGN    OF    QUEEN    ELIZABETH.     [ijSa— 

land  which  came  into  the  market  in  the  county  of  Nor- 
folk, he  asked  and  obtained  leave  to  purchase  "  one  acre 
more,"  whereupon  he  became  proprietor  of  the  great 
"  CASTLE  ACRE  "  estate,  of  itself  equal  to  all  his  former 
domains. 

When  he  had  been  four  years  at  the  bar,  he  made  a 
most  advantageous  marriage,1  being  the  preferred  suitor 
of  Bridget  Paston,  daughter  and  co-heiress  of  John  Pas- 
ton,  Esq.,  a  young  lady  who  had  not  only  beauty,  learn- 
ing, and  high  connection/  but  who  brought  him,  first  and 
last  (what  he  did  not  value  less),  a  fortune  of  £30,000. 
Although  he  was  dreadfully  punished  when  he  entered 
the  state  of  wedlock  a  second  time,  he  lived  in  entire 
harmony  with  his  first  wife,  who  died,  to  his  inexpres- 
sible grief,  leaving  him  ten  children. 

His  first  professional  honors  were  sure  proof  of  the 
general  estimation  in  which  he  was  held,  as  they  sprang 
not  from  intrigue  or  court  favor,  but  from  the  spon- 
taneous wish  of  great  municipal  communities  to  avail 
themselves  of  his  services.  In  1585  he  was  elected  Re- 
corder of  Coventry;  in  1586,  of  Norwich,  and  1592,  of 
London,  the  citizens  of  the  metropolis  being  unanimous 
in  their  choice  of  him,  and  having  conferred  a  retiring 
pension  of  .£100  a  year  to  make  way  for  him.  At  the 
same  time,  he  was  READER  (or  Law  Professor)  in  the 
Inner  Temple,  by  appointment  of  the  Benchers  ;  and  he 
appears  in  this  capacity  to  have  given  high  satisfaction. 
In  his  note-book,  still  extant,  he  states  that,  having  com- 
posed seven  lectures  on  the  Statute  of  Uses,  he  had  de- 
livered five  of  them  to  a  large  and  learned  audience, 
when  the  plague  broke  out,  and  that,  having  then  left 
London  for  his  house  at  Huntingfield  in  Suffolk, — to  do 
him  honor,  nine  Benchers  of  the  Temple  and  forty  other 
Templars  accompanied  him  on  his  journey  as  far  as 
Romford. 

1  This  event  was  supposed  to  have  happened  much  later  ;  but  the  follow- 
ing entry  has  been  discovered  in  the  parish  register  at  Cookly,  in  Norfolk : — 
"  1582.  Edward  Cooke,  Esq.,  and  Bridget  Paston,  the  daughter  of  John 
Paston,  Esq.,  were  married  the  I3th  of  August,  the  year  aforesaid." — 
Johnson,  I.  66. 

•  She  was  of  an  ancient  family  in  Norfolk,  and  nearly  connected  with 
the  noble  families  of  Rutland,  Shrewsbury,  Westmoreland,  and  Abergav- 
enny. 


I593-]  EDWARD    COKE.  253 

He  retained  the  office  of  Recorder  of  London  only 
for  a  few  months,  then  resigning  it  on  becoming  a  law 
officer  of  the  Crown. 

Burleigh,  always  desirous  to  enlist  in  the  public  service 
those  best  qualified  for  it,  had  for  some  time  been  well 
aware  of  the  extraordinary  learning  and  ability  of  Mr. 
Coke,  and  had  been  in  the  habit  of  consulting  him  on 
questions  of  difficulty  affecting  the  rights  of  the  Crown. 
A  grand  move  in  the  law  took  place  in  the  month  of 
May,  1592,  on  the  death  of  Sir  Christopher  Hatton, 
when  Sir  John  Puckering  being  made  Lord  Keeper, 
Sir  John  Popham  Chief  Justice  of  England,  and  Sir 
Thomas  Egerton  Attorney  General, — Coke,  in  his  4ist 
year,  became  Solicitor  General  to  the  Queen.  But  he 
never  seems,  like  his  great  rival,  to  have  enjoyed  Eliza- 
beth's personal  favor.  His  manners  were  not  prepossess- 
ing, and  out  of  his  profession  he  knew  little ;  while 
Francis  Bacon  was  a  polished  courtier,  and  had  taken 
"  all  knowledge  for  his  province." 

Not  being  sooner  appointed  as  a  law  officer  of  the  Crown, 
Coke  had  escaped  the  disgrace  of  being  concerned  against 
the  Queen  of  Scots,  and  the  scandalous  attempt  of  prerog- 
ative lawyers — of  which  Elizabeth  herself  was  ashamed 
— to  convert  the  peevish  speeches  against  her  of  that 
worthy  old  soldier,  Sir  John  Perrot,  into  overt  acts  of 
high  treason.  This  last  trial  was  still  pending  when  the 
new  Solicitor  General  was  sworn  in,  but  he  was  not 
required  to  appear  in  it ;'  and  the  world  remained  ig- 
norant of  the  qualities  he  was  to  exhibit  as  public  prose- 
cutor, till  the  arraignment  of  the  unfortunate  Earl  of 
Essex. 

He  was  in  the  meanwhile  to  appear  in  a  capacity 
which  politicians  in  our  time  would  think  rather  incon- 
sistent with  his  functions  as  a  servant  of  the  Crown. 
From  the  expenses  of  the  Spanish  war,  the  Queen  was 
driven,  after  an  interval  of  several  years,  to  call  a  new 
parliament ;  and  the  freeholders  of  Norfolk,  proud  of 
their  countryman,  now  evidently  destined  to  fill  the 
highest  offices  in  the  law,  returned  him  as  their  repre- 
sentative, the  election  being,  as  he  states  iii  a  note-book 

1 1  St.  Tr.  1315. 


.54         REIGN    OF    QUEEN    ELIZABETH.    [1593. 

still  extant,  "  unanimous,  free,  and  spontaneous,  without 
any  solicitation,  or  canvassing,  on  my  part." 

The  Commons,  when  ordered  to  choose  a  Speaker, 
fixed  upon  the  new  Solicitor  General,  it  being  thought 
that  his  great  legal  knowledge  would  supply  the  defect 
of  parliamentary  experience.  When  presented  at  the 
bar  for  the  royal  approbation,  he  thus  began  his  address 
to  Elizabeth : — 

"  As  in  the  heavens  a  star  is  but  opacum  corpus  until  it 
hath  received  light  from  the  sun,  so  stand  I  corpus  opa- 
cum,  a  mute  body,  until  your  Highnesa's  bright  shining 
wisdom  hath  looked  upon  me,  and  allowed  me."  He 
goes  on  to  "disqualify"  himself  at  great  length,  deplor- 
ing the  unlucky  choice  of  the  Commons  : — "  Amongst 
them,"  says  he,  "  are  many  grave,  many  learned,  many 
deep  wise  men,  and  those  of  ripe  judgments,  but  I  am 
untimely  fruit,  not  yet  ripe,  but  a  bud  scarcely  blos- 
somed. So  as  I  fear  me  your  Majesty  will  say  '  neglect  a 
frugi  eleguntur  folia,  amongst  so  many  fair  fruit  you 
have  plucked  a  shaken  leaf.'  " 

The  Lord  Keeper,  after  taking  instructions  from  the 
Queen,  said, — 

"  Mr.  Solicitor  :  Her  Grace's  most  excellent  Majesty 
hath  willed  me  to  signify  unto  you  that  she  hath  ever 
well  conceived  of  you  since  she  first  heard  of  you,  which 
will  appear  when  her  Highness  elected  you  from  others 
to  serve  herself.  But  by  this  your  modest,  wise,  and 
well-composed  speech  you  give  her  Majesty  further  oc- 
casion to  conceive  of  you  above  whatever  she  thought 
was  in  you.  By  endeavoring  to  deject  and  abase  your- 
self and  your  desert,  you  have  discovered  and  made 
known  your  worthiness  and  sufficiency  to  discharge  the 
place  you  are  called  to.  And  whereas  you  account  your- 
self corpus  opacum,  her  Majesty,  by  the  influence  of  her 
virtue  and  wisdom,  doth  enlighten  you  ;  and  not  only 
alloweth  and  approveth  you,  but  much  thanketh  the 
Lower  House,  and  commendeth  their  discretion  in  mak- 
ing so  good  a  choice  and  electing  so  fit  a  man.  Where- 
fore now,  Mr.  Speaker,  proceed  in  your  office,  and  go 
forward  to  your  commendation  as  you  have  begun." 

Mr.  Speaker  then  made  a  florid  oration  on  the  Queen's 
supremacy,  proving  from  history  that  this  prerogative 


I593-]  EDWARD     COKE.  255 

had  always  belonged  to  the  sovereigns  of  England  ;  and 
concluded  by  praying  for  liberty  of  speech,  and  the  other 
privileges  of  the  Commons.  The  Lord  Keeper  answered 
by  the  Queen's  command  : 

"  Liberty  of  speech  is  granted  you,  but  you  must 
know  what  privilege  you  have ;  not  to  speak  every  one 
what  he  listeth,  or  what  cometh  in  his  brain  to  utter, 
but  your  privilege  is  aye  or  no.  Wherefore,  Mr.  Speaker, 
her  Majesty's  pleasure  is,  that  if  you  perceive  any  idle 
heads  which  will  meddle  with  reforming  the  Church  and 
transforming  the  commonwealth,  and  do  exhibit  any 
bills  to  such  purpose,  you  receive  them  not  until  they 
be  viewed  and  considered  by  those  who  it  is  fitter 
should  consider  of  such  things  and  can  better  judge  of 
them." 

In  spite  of  this  caution,  a  member  of  the  name  of 
Morris  produced  a  bill  in  the  House  of  Commons,  "  for 
reforming  abuses  in  the  ecclesiastical  courts,  and  to  pro- 
tect the  clergy  from  the  illegal  oaths  they  were  called 
upon  to  take  by  the  Bishops."  Thereupon,  Mr.  Speaker 
Coke  said,  "  In  favor  and  free  love  above  my  merits  or 
desert  you  have  elected  me,  which  should  bind  me  to  do 
all  my  best  service,  and  to  be  faithful  towards  you.  This 
bill  is  long,  and  if  you  put  me  presently  to  open  it  I 
cannot  so  readily  understand  it  as  I  should.  Wherefore, 
if  it  please  you  to  give  me  leave  to  consider  it,  I  protest 
I  will  be  faithful,  and  keep  it  with  all  secresy."  The 
House  agreed  to  this  proposal,  and  adjourned,  it  being 
now  near  mid-day. 

Mr.  Speaker  immediately  posted  off  to  court,  pretend- 
ing afterwards  that  he  had  been  sent  for  by  the  Queen, 
and  next  morning  declared  from  the  chair  that,  although 
no  man's  eye  but  his  own  had  seen  the  bill,  her  Majesty 
had  desired  him  to  say,  "  she  wondered  that  any  should 
attempt  a  thing  which  she  had  expressly  forbidden  ;" 
wherefore,  with  this  she  was  highly  displeased.  "  And," 
added  he,  "upon  my  allegiance  I  am  commanded,  if  any 
such  bill  is  exhibited,  not  to  read  it."  Thus  the  bill  was 
quashed  ;  and  Morris,  the  mover  of  it,  being  committed 
to  the  custody  of  Sir  John  Fortescue,  the  Chancellor  of 
the  Exchequer,  was  kept  in  durance  for  some  weeks 
after  parliament  was  dissolved. 


256        REIGN    OF    QUEEN   ELIZABETH.      [1593 

One  morning  during  the  session,  Coke,  the  Speaker, 
not  appearing  at  the  sitting  of  the  House,  great  alarm 
arose ;  but  in  the  mean  time  the  clerk  was  directed  to 
proceed  to  read  the  litany  and  prayers.  A  message  was 
then  received  from  the  Speaker,  that  he  was  "  extremely 
pained  in  the  stomach,  insomuch  that  he  could  not 
without  great  peril  adventure  into  the  air,  but  that  he 
trusted  in  God  to  attend  them  next  day."  "  All  the 
members,  being  very  sorry  for  Mr.  Speaker's  sickness, 
rested  well  satisfied  ;  and  so  the  House  did  rise,  and 
every  man  departed  away." 

The  dissolution  took  place  on  the  i6th  of  April, 
when,  the  Queen  being  seated  on  the  throne,  the 
Speaker,  in  presenting  the  bill  of  supply  for  her  assent, 
delivered  an  elaborate  harangue  on  the  dignity  and  an- 
tiquity of  parliaments,  which  he  concluded  with  the 
following  ingenious  comparison  between  the  state  and 
a  bee-hive  : 

"  Sic  enim  parvis  componere  magna  solebam.  The  little 
bees  have  but  one  governor,  whom  they  all  serve ;  he  is 
their  king;  he  is  placed  in  the  midst  of  their  habitation, 
ut  in  tutissima  turri.  They  forage  abroad,  working 
honey  from  every  flower  to  bring  to  their  king.  '  Igna- 
vum  fucos  pecus  h  prasepibus  arcent!  The  drones  they 
drive  away  out  of  their  hives,  '  non  habentes  aculeos." 
And  whoso  assails  their  king  in  him  '  immittunt  aculeos, 
et  tamen  rex  ipse  est  sine  acuelo!  Your  Majesty  is  that 
princely  governor  and  noble  Queen  whom  we  all  serve. 
Being  protected  under  the  shadow  of  your  wings,  we 
live.  Under  your  happy  government  we  live  upon 
honey,  we  suck  upon  every  sweet  flower ;  but  where  the 
bee  sucketh  honey,  there  also  the  spider  draweth  poison. 
But  such  drones  we  will  expel  the  hive.  We  will  serve 
your  Majesty,  and  withstand  any  enemy  that  shall  as- 
sault you.  Our  lands,  our  goods,  our  lives,  are  prostrate 
at  your  feet  to  be  commanded."* 

Who  would  suppose  that  this  was  the  same  individual 
who  framed  and  carried  the  Petition  of  Right !  He  was 
not  again  a  representative  of  the  people  for  above  twenty 
years,  being,  before  another  parliament  met,  in  the  office 

1  Sir  Simon  d'Ewes  :  Journal,  470. 
»  I  Parl.  Hist.  858-893. 


1 5  94-]  EDWARD    COKE.  257 

of  Attorney  General,  then  supposed  to  be  a  disqualifica- 
tion for  sitting  in  the  Lower  House;  and  afterwards 
being  successively  Chief  Justice  of  the  Common  Pleas 
and  of  the  King's  Bench.  For  his  services  in  the  chair 
he  received  a  gratuity  of  £100;  and  he  again  devoted 
himself  to  his-  professional  avocations,  which  had  been 
considerably  interrupted,  although  by  no  means  discon- 
tinued, while  he  acted  as  Speaker. 

Things  went  on  very  smoothly  till  the  month  of  April 
in  the  following  year,  when,  on  the  appointment  of  Sir 
Thomas  Egerton  as  Master  of  the  Rolls,  the  office  of 
Attorney  General  became  vacant.  Mr.  Solicitor  thought 
that,  as  a  matter  of  course,  he  was  to  succeed  to  it ;  but 
there  sprang  up  a  rival,  with  whom  he  was  in  continual 
conflict  during  the  remainder  of  this  and  the  whole  of 
the  succeeding  reign, — on  whom,  for  deep  injuries,  he 
took  deadly  revenge, — but  who,  with  posterity,  has  in- 
finitely eclipsed  his  fame.  Francis  Bacon,  nine  years 
his  junior  in  age,  and  eight  years  in  standing  at  the  bar, 
with  much  less  technical  learning,  had,  by  literary  at- 
tainments, and  by  the  unprecedented  powers  of  debate 
which  he  had  displayed  in  the  late  parliament,  created 
for  himself  a  splendid  reputation,  and,  without  any 
steadiness  of  principle,  had  by  his  delightful  manners 
gained  the  zealous  support  of  many  private  friends. 
Among  these,  the  most  powerful  was  the  young  Earl  of 
Essex,  now  the  favored  lover  of  the  aged  Queen.  He 
strongly  represented,  both  to  Elizabeth  and  her  min- 
ister, the  propriety  of  making  Bacon  at  once  the  first 
law  officer  of  the  Crown,  but  was  asked  for  "  one  pre- 
cedent of  so  raw  a  youth  being  promoted  to  so  great  a 
place."  '  Coke  was,  very  properly,  appointed  Attorney 
General ;  and,  out  of  jealousy,  meanly  discouraged  the 
proposal  to  make  Bacon  Solicitor  General, — an  appoint- 
ment which  would  have  been  unobjectionable.  Amidst 
these  intrigues,  the  office  of  Solicitor  General  remained 
vacant  a  year  and  a  half,  and  it  was  at  last  conferred  on 
Sir  Thomas  Fleming,  characterized,  as  we  have  seen,  by 
that  mediocrity  of  talent  and  acquirement  which  has 
often  the  best  chance  of  advancement. 

In  the  two  parliaments  which  afterwards  met  under 

1  Nares'  Life  of  Burleigh,  iii.  436. 

I — 17 


858         REIGN    OF    QUEEN    ELIZABETH.     [1600 

Elizabeth,1  Coke  had  only  to  sit  on  the  Judges'  wool- 
sack in  the  House  of  Lords,  and  to  give  his  advice,  when 
asked,  for  the  guidance  of  their  Lordships  on  matters  of 
law.  But  he  was  called  upon  to  act  a  prominent  part  in 
the  prosecution  of  state  offenders.  Towards  the  end  of 
Elizabeth's  reign,  many  individuals  were  committed  on 
real  or  imaginary  charges  of  being  concerned  in  plots 
against  the  government  or  the  person  of  the  Sovereign ; 
and,  for  the  convenience  of  inflicting  torture  upon  them 
to  force  a  confession,  their  place  of  confinement  was 
usually  the  Tower  of  London.  Thither  did  Mr.  At- 
torney repair  to  examine  them  while  under  the  rack ; 
and  whole  volumes  of  examinations  in  these  cases,  writ- 
ten with  his  own  hand,  whic.h  are  still  preserved  at  the 
State  Paper  Office,  sufficiently  attest  his  zeal,  assiduity, 
and  hard-heartedness  in  the  service.  Although  after- 
wards, in  his  old  age,  writing  the  "  Third  Institute,"  he 
laid  down,  in  the  most  peremptory  manner,  that  torture 
was  contrary  to  the  law  of  England,  and  showed  how 
the  rack  or  brake  in  the  Tower  was  first  introduced 
there  in  the  reign  of  Henry  VI.  by  the  Duke  of  Exeter, 
and  so  ever  after  called  The  Duke  of  Exeter  s  daughter* 
— like  his  predecessor  Egerton,  and  his  successor  Bacon, 
he  thought  that  the  Crown  was  not  bound  by  this  law ; 
and,  a  warrant  for  administering  torture  being  granted 
by  the  Council,  he  unscrupulously  attended  to  see  the 
proper  degree  of  pain  inflicted.  I  do  not  know  that  this 
practice  reflects  serious  discredit  on  his  memory.  He 
is  not  accused  of  having  been  guilty,  on  these  occasions, 
of  any  wanton  inhumanity. 

But  he  incurred  never-dying  disgrace  by  the  manner 
in  which  he  insulted  his  victims  when  they  were  placed 
at  the  bar  of  a  criminal  court.  The  first  revolting  in- 
stance of  this  propensity  was  on  the  trial  of  Robert, 
Earl  of  Essex,  before  the  Lord  High  Steward  and  Court 
of  Peers,  for  the  insurrection  in  the  City,  and  with  a 
view  to  get  possession  of  the  Queen's  person  and  to  rid 
her  of  evil  counselors.  The  offense,  no  doubt,  amounted 
in  point  of  law  to  treason ;  but  the  young  and  chival- 
rous culprit  really  felt  loyalty  and  affection  for  his  aged 
mistress,  and,  without  the  most  distant  notion  of  pre- 

1  1597  and  1601.  *  3  Inst.  35. 


i6co.J  EDWARD     COKE.  259 

tending  to  the  crown,  only  wished  to  bring  about  a 
change  of  administration,  in  the  fashion  still  followed  in 
Continental  states.  Yet,  after  Yelverton,  the  Queen's 
ancient  sergeant,  had  opened  the  case  at  full  length,  and 
with  becoming  moderation,  Coke,  the  Attorney-General, 
immediately  followed  him,  giving  a  most  inflamed  and 
exaggerated  statement  of  the  facts,  and  thus  concluding : 
"  But  now,  in  God's  most  just  judgment,  he  of  his  earl- 
dom shall  be  '  ROBERT  THE  LAST,'  that  of  the  kingdom 
thought  to  be  '  ROBERT  THE  FIRST.' '  His  natural 
arrogance  I  am  afraid  was  heightened  on  this  occasion 
by  the  recollection  that  Essex,  stimulated  by  an  en- 
thusiastic admiration  of  his  rival,  had  striven  hard  to 
prevent  his  promotion  to  the  office  which  he  now  filled. 
The  high-minded,  though  misguided  youth,  exclaimed, 
with  a  calm  and  lofty  air,  "  He  playeth  the  orator,  and 
abuses  your  Lordships'  ears  with  slanders ;  but  they  are 
but  fashions  of  orators  in  corrupt  states." 

This  was  a  humiliating  day  for  our  "  order"  as  Bacon 
covered  himself  with  still  blacker  infamy  by  volun- 
teering to  be  counsel  against  his  friend  and  benefactor, 
and  by  resorting  to  every  mean  art  for  the  purpose  of 
bringing  him  to  the  scaffold.1 

We  must  now  take  a  glance  at  Coke  in  private  life. 
He  had  no  town  house.  During  term  time,  and  when 
occasionally  obliged  to  be  in  London  in  vacation  for 
official  business,  he  slept  in  his  chambers  in  the  Temple. 
From  the  time  of  his  marriage  his  home  was  at  Hunting- 
field  Hall,  in  the  county  of  Suffolk,  an  estate  he  had 
acquired  with  his  wife.  On  the  2/th  of  June,  1598,  he 
had  the  misfortune  to  lose  her,  she  being  then  only  in 
her  thirty-fourth  year.  In  his  memorandum-book,  kept 
for  his  own  exclusive  use,  is  to  be  found  under  this  date 
the  following  entry : — 

"  Most  beloved  and  most  excellent  wife,  she  well  and 
happily  lived,  and,  as  a  true  handmaid  of  the  Lord, 
fell  asleep  in  the  Lord  and  now  lives  and  reigns  in 
Heaven." 

On  the  24th  of  July  she  was  buried  in  Huntingfield 
church,  the  delay  being  necessary  for  the  pomp  with 
which  her  obsequies  were  celebrated. 

1  St  Tr.  1333-1384. 


260        REIGN    OF    QUEEN   ELIZABETH.       [1598. 

From  ambition  and  love  of  wealth,  probably,  rather 
than  from  "  thrift,"— 

"the  funeral  bak'd  meats 

Did  coldly  furnish  forth  the  marriage  tables." 

There  was  then  at  court  a  beautiful  young  widow, 
only  twenty  years  of  age,  left  with  an  immense  fortune 
and  without  children,  highly  connected,  and  celebrated 
for  wit  as  well  as  for  birth,  riches,  and  beauty.*  This 
was  the  Lady  Hatton,  daughter  of  Thomas  Cecil,  eldest 
son  of  Lord  Burleigh,  afterwards  Earl  of  Exeter.  She 
had  been  married  to  the  nephew  and  heir  of  Lord  Chan- 
cellor Hatton.  Her  first  husband  dying  in  1597,33  soon 
as  she  was  visible  she  was  addressed  by  her  cousin 
Francis  Bacon,  then  a  briefless  barrister,  but  with  bril- 
liant professional  prospects,  although  he  had  "  missed 
the  Solicitor's  place."  Whether  she  thought  him  too 
"  contemplative,"  I  know  not,  but  she  gave  him  no  en- 
couragement ;  ancf  his  suit  was  not  at  all  favored  by  her 
relations,  the  Cecils,  who  were  jealous  of  his  superior 
abilities,  and  wished  to  keep  him  down,  that  there  might 
be  no  political  rival  to  Robert,  the  Treasurer's  younger 
son,  now  filling  the  office  of  Secretary  of  State,  after- 
wards Earl  of  Salisbury,  and  prime  minister  to  James  I. 
Bacon  employed  the  powerful  intercession  of  the  Earl 
of  Essex,  who,  prior  to  sailing  on  his  expedition  to  the 
coast  of  Spain,  wrote  pressing  letters  in  support  of  his 
suit  to  the  lady  herself,  and  to  her  father  and  her 
mother,  saying  that  "  if  he  had  a  daughter  of  his  own 
he  would  rather  match  her  with  the  accomplished  law- 
yer than  with  men  of  far  greater  titles." 

The  affair  was  in  this  state  when  Coke  became  a  wid- 
ower. He  immediately  cast  a  longing  eye  on  the  widow's 
great  possessions ;  but  probably  he  would  not  have  been 
roused  to  the  indecorous  and  seemingly  hopeless  attempt 
of  asking  her  in  marriage,  had  it  not  been  for  the  appre- 
hension that,  if  Francis  Bacon  should  succeed,  a  political 
and  professional  rival  would  be  heartily  taken  up  by  the 
whole  family  of  the  Cecils,  that  he  himself,  thus  left  with- 

*  When  Ben  Jonson's  "  Masque  of  Beauty  "  was  played  before  the  King 
at  Theobald's  and  at  Whitehall,  in  1607,  she  was  one  of  the  fifteen  court 
beauties  who,  with  the  Queen,  performed  in  the  show. — Nichol's  Progresses, 
ToL  ii.  p.  174,  175. 


1598-!  EDWARD    COKE.  261 

out  support,  would  probably  soon  be  sacrificed.  He  re- 
solved to  declare  himself  her  suitor,  in  spite  of  all  objec- 
tions and  difficulties. 

Soon  afterwards  died  the  great  Lord  Treasurer  Bur- 
leigh ;  and  Coke,  attending  the  funeral,  opened  his 
scheme  to  her  father,  and  her  uncle  Sir  Robert.  They, 
looking  to  his  great  wealth  and  high  position,  and  always 
afraid  of  the  influence  which  Bacon  might  acquire  in  the 
House  of  Commons,  said  they  would  not  oppose  it. 

We  are  left  entirely  in  the  dark  as  to  the  means  he 
employed  to  win  the  consent  of  the  lady.  He  certainly 
could  not  have  gained,  and  never  did  gain,  her  affections  ; 
and  the  probability  is  that  she  succumbed  to  the  impor- 
tunities of  her  relations. 

Still  she  resolutely  refused  to  be  paraded  in  the  face 
of  the  church  as  the  bride  of  the  old  wrinkled  Attorney 
General,  who  was  bordering  on  fifty — an  age  that  ap- 
peared to  her  to  approach  that  of  Methuselah ;  and  she 
would  only  consent  to  a  clandestine  marriage  by  a  priest 
in  a  private  house,  in  the  presence  of  two  or  three  wit- 
nesses. But  here  a  great  difficulty  presented  itself,  for 
Archbishop  Whitgift  had  just  thundered  from  Lambeth 
an  anathema  against  irregular  marriages.  In  a  pastoral 
letter  addressed  to  all  the  bishops  of  his  province,  after 
reciting  "  that  many  complaints  had  reached  him  of  min- 
isters, who  neither  regarded  her  Majesty's  pleasure  nor 
were  careful  of  their  credit,  marrying  conples  in  private 
houses,  at  unreasonable  hours,  and  without  proclamation 
of  banns,  as  if  ordinances  were  to  be  contemned,  and 
ministers  were  to  be  left  at  large  to  break  all  good  order," 
his  Grace  expressly  prohibited  all  such  offenses  and  scan- 
dals for  the  future,  and  forbade,  under  the  severest  pen- 
alties, the  celebration  of  any  marriage  except  during 
canonical  hours,  in  some  cathedral  or  parish  church,  with 
the  license  of  the  ordinary,  or  after  proclamation  of  banns 
on  three  Sundays  or  holidays.1 

It  was  an  awkward  thing  for  the  first  law  officer  of  the 
Crown,  celebrated  for  his  juridical  knowledge,  and  always 
professing  a  profound  reverence  for  ecclesiastical  author- 
ity, to  set  at  defiance  the  spiritual  head  of  the  Church, 
and  to  run  the  risk  of  the  "  greater  excommunication  " 

1  Strype's  Life  of  Whitgift,  p.  522. 


262      REIGN    OF  QUEEN    ELIZABETH.        [1598. 

whereby  he  would  not  only  be  debarred  from  the  sacra- 
ments and  from  all  intercourse  with  the  faithful,  but 
would  forfeit  his  property,  and  be  liable  to  perpetual  im- 
prisonment. However,  he  determined  to  run  all  risks 
rather  than  lose  the  prize  within  his  reach  ;  and  on  the 
24th  of  November,  1598,  in  the  evening,  in  a  private 
house,  without  license  or  banns,  was  he  married  to  the 
Lady  Hatton,  in  the  presence  of  her  father,  who  gave  her 
away. 

Coke  probably  hoped  that  this  transgression  would  be 
overlooked ;  for  Whitgift  had  been  his  tutor  at  college, 
and  on  his  being  made  Attorney  General,  had  kindly 
sent  him  a  Greek  Testament,  with  a  message  "  that  he 
had  studied  the  common  law  long  enough,  and  that  he 
should  thereafter  study  the  law  of  God."  But  this  pious 
primate  now  showed  that  he  was  no  respecter  of  persons, 
for  he  immediately  ordered  a  suit  to  be  instituted  in  his 
court  against  Coke,  the  bride,  the  Lord  Burleigh,  and 
Henry  Bathwell  the  Rector  of  Okeover,  the  priest  who 
had  performed  the  ceremony.  A  libel  was  exhibited 
against  them,  concluding  for  the  "  greater  excommuni- 
cation" as  the  appropriate  punishment. 

Mr.  Attorney  made  a  most  humble  submission  ;  and, 
in  consequence,  there  was  passed  a  dispensation  under 
the  archiepiscopal  seal,  which  is  registered  in  the  arch- 
ives of  Lambeth  Palace,  absolving  all  the  defendants 
from  the  penalties  which  they  had  incurred,  and  alleging 
their  "  ignorance  of  the  ecclesiastical  law"  as  an  excuse 
for  their  misconduct,  and  for  the  mercy  extended  to 
them. 

However,  the  union  turned  out  as  might  have  been 
foreseen, — a  most  unhappy  one.  There  was  not  only  a 
sad  disparity  of  years,  but  an  utter  discrepancy  of  tastes 
and  of  manners  between  husband  and  wife.  He  was  a 
mere  lawyer,  devoted  to  his  briefs,  and  hating  all  gayety 
and  expense.  She  delighted  above  all  things  in  hawk- 
ing, in  balls  and  in  masques  :  though  strictly  virtuous, 
she  was  fond  of  admiration,  and,  instead  of  conversing 
with  grave  judges  and  apprentices  of  the  law,  she  liked 
to  be  surrounded  by  young  gallants  who  had  served 
under  Sir  Philip  Sydney  and  the  Earl  of  Essex,  and  could 
repeat  the  verses  of  Spenser  and  Lord  Surrey.  She 


1603.]  EDWARD     COKE.  a63 

would  never  even  take  her  second  husband's  name,  for 
in  doing  so  she  must  have  been  contented  with  the  home- 
ly appellation  of  "  Mrs.  Coke,"  or  "  Cook"  as  she  wrote 
it, — for  it  was  not  till  the  following  reign  that  he  reached 
the  dignity  of  knighthood. 

Within  a  year  after  their  marriage  they  had  a  daugh- 
ter, about  whom  we  shall  have  much  to  relate ;  but  after 
her  birth  they  lived  little  together,  although  they  had 
the  prudence  to  appear  to  the  world  to  be  on  decent 
terms  till  this  heiress  was  marriageable, — when  their 
quarrels  disturbed  the  public  peace — were  discussed  in 
the  Star  Chamber — and  agitated  the  Court  of  James  I. 
as  much  as  any  question  of  foreign  war  which  arose  dur- 
ing the  whole  course  of  his  reign. 

In  the  last  illness  of  Queen  Elizabeth,  Coke  did  not, 
like  some  of  her  other  courtiers,  open  a  communication 
with  her  successor ;  but  he  always  maintained  the  right 
of  the  Scottish  line,  notwithstanding  the  will  of  Henry 
VIII.,  which  gave  a  preference  to  the  issue  of  the 
Duchess  of  Suffolk,  and  he  assisted  Sir  Robert  Cecil  in  the 
measures  taken  to  secure  the  succession  of  the  true  heir. 

Coke  prepared  the  dry  lawyer-like  proclamation  of  the 
new  monarch,  which  was  adopted  in  preference  to  the 
rhetorical  one  offered  by  Bacon,  declaring  "  that  no 
man's  virtue  should  be  left  idle,  unemployed,  or  unre- 
warded." The  Attorney  General  was  included  in  the 
warrant  under  the  sign  manual  for  continuing  in  office 
the  ministers  of  the  Crown,  and  on  the  22nd  of  April 
his  patent  was  renewed  under  the  great  seal.  He  did  not 
show  the  same  impatience  as  his  rival  to  gain  the  King's 
personal  notice,  and  he  was  not  introduced  into  the 
royal  presence  for  several  weeks.  At  last,  at  a  grand 
banquet,  given  in  the  palace  at  Greenwich  to  the  princi- 
pal persons  of  the  kingdom,  James,  with  many  civil 
speeches,  conferred  upon  him  the  honor  of  knighthood, 
along  with  Lee  the  Lord  Mayor  of  London,  and  Crook 
the  Recorder.  To  his  credit  it  should  be  remembered, 
that  he  at  no  time  strove  to  gain  the  favor  of  the  great, 
— that  he  never  mixed  in  court  intrigues, — and  that  he 
was  contented  to  recommend  himself  to  promotion  by 
what  he  considered  to  be  the  faithful  discharge  of  his 
official  duties. 


264  REIGN    OF    JAMES    I.  [1603. 

His  first  appearance  as  public  prosecutor  in  the  new 
reign  was  on  the  trial,  before  a  special  commission  at 
Winchester,  of  Sir  Walter  Raleigh,  charged  with  high 
treason  by  entering  into  a  plot  to  put  the  Lady  Arabella 
Stuart  on  the  throne  ;  and  here,  I  am  sorry  to  say  that, 
by  his  brutal  conduct  to  the  accused,  he  brought  per- 
manent disgrace  upon  himself  and  upon  the  English 
bar.  He  must  have  been  aware  that,  notwithstanding 
the  mysterious  and  suspicious  circumstances  which  sur- 
rounded this  affair,  he  had  no  sufficient  case  against  the 
prisoner,  even  by  written  depositions  and  according  to 
the  loose  notions  of  evidence  then  subsisting  ;  yet  he 
addressed  the  jury,  in  his  opening,  as  if  he  were  scan- 
dalously ill-used  by  any  defense  being  attempted.  While 
he  was  detailing  the  charge,  which  he  knew  could  not  be 
established,  of  an  intention  to  destroy  the  King  and  his 
children, — at  last  the  object  of  his  calumny  interposed, 
and  the  following  dialogue  passed  between  them  : — 

Raleigh  :  "  You  tell  me  news  I  never  heard  of."  At- 
torney General :  "  Oh,  sir,  do  I  ?  I  will  prove  you  the 
notoriest  traitor  that  ever  held  up  his  hand  at  the  bar 
of  any  court."  R.  :  "Your  words  cannot  condemn 
me  ;  my  innocency  is  my  defense.  Prove  one  of  these 
things  wherewith  you  have  charged  me,  and  I  will  con- 
fess the  whole  indictment,  and  that  I  am  the  horriblest 
traitor  that  ever  lived,  and  worthy  to  be  crucified  with  a 
thousand  thousand  torments."  A.  G.:  "  Nay,  I  will  prove 
all  :  thou  art  a  monster :  thou  hast  an  English  face,  but 
a  Spanish  heart."  R. :  "  Let  me  answer  for  myself." 
A.G.:  "Thou  shalt  not."  R. :  "It  concerneth  my 
life."  A.  G. :  "  Oh  !  do  I  touch  you  ?" 

The  proofless  narrative  having  proceeded,  Raleigh 
again  broke  out  with  the  exclamation,  "  You  tell  me 
news,  Mr.  Attorney !"  and  thus  the  altercation  was  re- 
newed : — 

A.  G. :  "  Oh,  Sir,  I  am  the  more  large  because  I  know 
with  whom  I  deal ;  for  we  have  to  deal  to-day  with  a 
man  of  wit.  I  will  teach  you  before  I  have  done."  R. : 
"  I  will  wash  my  hands  of  the  indictment  and  die  a  true 
man  to  the  King."  A.  G.:  "You  are  the  absolutest 
traitor  that  ever  was."  R.  :  "  Your  phrases  will  not 
prove  it."  A.  G.  (in  a  tone  of  assumed  calmness  and  ten- 


1603.]  EDWARD     COKE.  265 

derness)  :  "  You,  my  masters  of  the  jury,  respect  not  the 
wickedness  and  hatred  of  the  man  ;  respect  his  cause  :  if 
he  be  guilty,  I  know  you  will  have  care  of  it,  for  the 
preservation  of  the  King,  the  continuance  of  the  Gospel 
authorized,  and  the  good  of  us  all."  R.  :  "  I  do  not 
hear  yet  that  you  have  offered  one  word  of  proof  against 
me.  If  my  Lord  Cobham  be  a  traitor,  what  is  that  to 
me?"  A.  G.  :  "  All  that  he  did  was  by  thy  instigation, 
.thou  viper  ;  for  I  thou  thee,  thou  traitor."1 

The  depositions  being  read,  which  did  not  by  any 
means  make  out  the  prisoner's  complicity  in  the  plot,  he 
observed, — 

"You  try  me  by  the  Spanish  Inquisition  if  you  pro- 
ceed only  by  circumstances,  without  two  witnesses." 
A.  G.  :  "  This  is  a  treasonable  speech."  R.  :  "  I  appeal 
to  God  and  the  King  in  this  point,  whether  Cobham's 
accusation  is  sufficient  to  condemn  me  ?"  A.  G.  :  "  The 
King's  safety  and  your  clearing  cannot  agree.  I  protest 
before  God  I  never  knew  a  clearer  treason.  Go  to,  I  will 
lay  thee  upon  thy  back  for  the  confidentest  traitor  that 
ever  came  at  a  bar." 

At  last,  all  present  were  so  much  shocked  that  the 
Earl  of  Salisbury,  himself  one  of  the  Commissioners,  re- 
buked the  Attorney  General,  saying,  "  Be  not  so  im- 
patient, good  Mr.  Attorney ;  give  him  leave  to  speak." 
A.  G. :  "  If  I  may  not  be  patiently  heard,  you  will  en- 
courage traitors  and  discourage  us.  I  am  the  King's 
sworn  servant,  and  must  speak."  The  reporter  relates 
that  "  here  Mr.  Attorney  sat  down  in  a  chafe,  and  would 
speak  no  more  until  the  Commissioners  urged  and  en- 
treated him.  After  much  ado  he  went  on,  and  made  a 
long  repetition  of  all  the  evidence,  and  thus  again  ad 
dressing  Sir  Walter:  'Thou  art  the  most  vile  and  exe 
crable  traitor  that  ever  lived.  I  want  words  sufficient  to 
express  thy  viprous  treasons.' ' 

Of  course  there  was  a  verdict  of  guilty ;  but  public 
feeling  was  so  outraged,  that  the  sentence  could  not  then 

1  Sir  Toby,  in  giving  directions  to  Sir  Andrew  for  his  challenge  to  Viola, 
is  supposed  to  allude  to  this  scene : — 

"  If  thou  thons't  him  some  thrice,  it  shall  not  be  amiss  ;  and  as  many 
lies  as  will  lie  in  thy  sheet  of  paper.  Let  there  be  gall  enough  in  thy  ink. ' 
—  Twelfth  Nig/it,  act.  iii.  sc.  2. 


266  REIGN    OF    JAMES    I.  [1603. 

be  carried  into  execution.  He  languished  many  years 
in  prison,  and  after  his  unfortunate  expedition  to 
Guiana,  the  atrocity  was  perpetrated  of  ordering 
him  to  be  hanged,  drawn,  and  quartered  on  this  illegal 
judgment. 

Sir  Edward  Coke's  arrogance  to  the  whole  bar,  and  to 
all  who  approached  him,  now  became  almost  insuffer- 
able. His  demeanor  was  particularly  offensive  to  his 
rival,  who,  although  without  office,  excited  his  jealousy 
by  the  splendid  literary  fame  which  he  had  acquired, 
and  by  the  great  favor  which  he  enjoyed  at  Court.  Ba- 
con, as  yet,  was  only  King's  counsel,  all  his  intrigues  for 
promotion  having  proved  abortive.  He  has  left  us  a 
very  graphic  account  of  one  of  his  encounters  with  the 
tyrant  of  Westminster  Hall  near  the  close  of  the  pre- 
ceding reign.  Having  to  make  a  motion  in  the  Court 
of  Exchequer,  which,  it  seems,  he  knew  would  be  dis- 
agreeable to  Coke,  he  says — 

"  This  I  did  in  as  gentle  and  reasonable  terms  as 
might  be.  Mr.  Attorney  kindled  at  it,  and  said,  '  Mr. 
Bacon,  if  you  have  any  tooth  against  me,  pluck  it  out ; 
for  it  will  do  you  more  hurt  than  all  the  teeth  in  your 
head  will  do  you  good.'  I  answered  coldly  in  these  very 
words,  '  Mr.  Attorney,  I  respect  you  ;  I  fear  you  not ; 
and  the  less  you  speak  of  your  own  greatness,  the  more 
I  will  think  of  it.'  He  replied, '  I  think  it  scorn  to  stand 
upon  terms  of  greatness  towards  you,  who  are  less  than 
little — less  than  the  least,'  and  other  such  strange  light 
terms  he  gave  me,  with  that  insulting  which  cannot  be 
expressed.  Herewith  stirred,  yet  I  said  no  more  but 
this,  '  Mr.  Attorney,  do  not  depress  me  so  far ;  for  I 
have  been  your  better,  and  may  be  again  when  it  please 
the  Queen.'  With  this  he  spake,  neither  I  nor  himself 
could  tell  what,  as  if  he  had  been  born  Attorney  General ; 
and,  in  the  end,  bade  me  '  not  meddle  wth  the  Queen's 
business,  but  with  mine  own,  and  that  I  was  unsworn,' 
&c.  I  told  him,  '  sworn  or  unsworn  was  all  one  to  an 
honest  man,  and  that  I  ever  set  my  service  first  and  my- 
self second,  and  wished  to  God  that  he  would  do  the 
like.'  Then  he  said  '  it  were  good  to  clap  a  cap.  utla- 
gatum  upon  my  back.'  To  which  I  only  said  '  he  could 
not,  and  that  he  was  at  a  fault,  for  that  he  hunted  on  an 


1603]  EDWARD     COKE.  267 

old  scent.' '  He  gave  me  a  number  of  disgraceful  words 
besides ;  which  I  answered  with  silence,  and  showing 
that  I  was  not  moved  with  them."  a 

The  enmity  between  them  being  still  further  exasper- 
ated by  subsequent  conflicts,  Bacon  at  length  wrote  the 
following  letter  of  seeming  defiance,  but  couched  in 
terms  which  it  was  thought  might  soften  Sir  Edward,  or, 
at  any  rate,  induce  him  to  think  it  for  his  advantage  to 
come  to  a  reconciliation  : 

"  Mr.  Attorney, 

"  I  thought  it  best,  once  for  all,  to  let  you  know  in 
plainness  what  I  find  of  you,  and  what  you  shall  find  of 
me.  You  take  to  yourself  a  liberty  to  disgrace  and  dis- 
able my  law,  my  experience,  my  discretion  :  what  it 
pleaseth  you,  I  pray  think  of  me :  I  am  one  that  knows 
both  mine  own  wants  and  other  men's ;  and  it  may  be 
perchance,  that  mine  mend,  and  others'  stand  at  a  stay. 
And  surely  I  may  not  endure  in  public  place  to  be 
wronged  without  repelling  the  same,  to  my  best  advan- 
tage to  right  myself.  You  are  great,  and  therefore  have 
the  more  enviers,  which  would  be  glad  to  have  you  paid 
at  another's  cost.  Since  the  time  I  missed  the  Solicitor's 
place  (the  rather  I  think  by  your  means),  I  cannot  ex- 
pect that  you  and  I  shall  ever  serve  as  Attorney  and 
Solicitor  together ;  but  either  to  serve  with  another  on 
your  remove,  or  to  step  into  some  other  course,  so  as  I 
am  more  free  than  I  ever  was  from  any  occasion  of  un- 
worthily conforming  myself  to  you  more  than  general 
good  manners  or  your  particular  good  usage  shall  pro- 
voke ;  and  if  you  had  not  been  short-sighted  in  your 
own  fortune  (as  I  think),  you  might  have  had  more  use 
of  me.  But  that  side  is  passed.  I  write  not  this  to  show 
my  friends  what  a  brave  letter  I  have  written  to  Mr.  At- 
torney. I  have  none  of  those  humors ;  but  that  I  have 
written  it  to  a  good  end,  that  is,  to  the  more  decent  car- 
riage of  my  master's  service,  and  to  our  particular  better 
understanding  one  of  another.  This  letter,  if  it  should 
be  answered  by  you  in  deed  and  not  in  word,  I  suppose 
it  will  not  be  worse  for  us  both,  else  it  is  but  a  few  lines 

1  This  is  supposed  to  allude  to  proctis  of  outlawry  against  Bacon  at  UM 
suit  of  a  usuicr. 

*  Bacon's  Works,  ed.  1 3 19,  vol.  vL  p.  46. 


268  REIGN    OF    JAMES    I.  [1606. 

lost,  which  for  a  much  smaller  matter  I  would  have 
adventured.  So  this  being  to  yourself,  I  for  my  part 
rest,"  &c.' 

But  Coke  was  inflexible,  and,  as  long  as  he  remained 
at  the  bar — encouraging  men  who  might  be  useful,  with- 
out being  formidable,  to  him — would  bear  "  no  brother 
near  his  throne." 

The  breaking  out  of  the  Gunpowder  treason  enhanced, 
if  possible,  his  importance  and  his  superciliousness.  The 
unraveling  of  the  plot  was  entirely  intrusted  to  him. 
He  personally  examined,  many  times,  Guy  Fawkes  and 
the  other  prisoners  apprehended  when  the  plot  was  dis- 
covered, but  it  is  believed  that  they  were  not  in  general 
subjected  to  the  rack,  as  they  did  not  deny  their  design 
to  blow  into  the  air  the  King  and  all  his  court,  with  all 
the  members  of  both  houses  of  parliament.* 

When  the  trial  came -on,  Coke  opened  the  case  to  the 
jury  at  enormous  length,  dividing  his  discourse,  after  the 
manner  of  the  age :  "  The  considerations  concerning  the 
powder  treason,"  said  he,  "  are  in  number  eight :  that  is 
to  say,  i.  The  persons  by  whom  ;  2.  The  persons  against 
whom;  3.  The  time  when;  4.  The  place  where ;  5.  The 
means ;  6.  The  end ;  7.  The  secret  contriving ;  and, 
lastly,  the  admirable  discovery  thereof."  Under  the 
first  head,  after  recapitulating  all  the  plots,  real  or  im- 
aginary, to  overturn  the  Protestant  government,  which 
the  Roman  Catholics  were  supposed  to  have  entered 
into  since  the  Reformation,  he  boasted  much  of  the 
clemency  of  Queen  Elizabeth,  averring  that  "  in  all  her 
Majesty's  time,  by  the  space  of  forty-four  years  and  up- 
wards, there  were  executed  in  all  not  thirty  priests,  nor 
above  five  receivers  and  harborers  of  them."  Perhaps 

1  Bacon's  Works,  iv.  570. 

*  Guy,  however,  was  made  to  "  kiss  the  Duke  of  Exeter's  daughter,"  for 
he  long  refused  to  say  more  than  that  "  his  object  was  to  destroy  the  parlia- 
ment as  the  sole  means  of  putting  an  end  to  religious  persecution."  A 
Scottish  nobleman  having  asked  him  "  for  what  end  he  had  collected  so 
many  barrels  of  gunpowder  ?"  he  replied,  "  To  blow  the  Scottish  beggars 
hack  to  their  native  mountains  ! ! !"  Two  fac-similes  of  his  signature  are 
to  be  seen  in  Jardine's  Criminal  Trials :  the  first  in  a  good  bold  hand,  be-' 
fore  torture;  the  second  after  torture,  exhibiting  the  word  "  Guido"  in  an 
almost  illegible  scrawl,  and  two  ill-formed  strokes  in  place  of  his  surname, 
— apparently  having  been  unable  to  hold  the  pen  any  longer. — Jardine's 
Chm.  Tr.,  p.  17 


1604.]  EDWARD    COKE.  269 

his  style  of  oratory  may  best  be  judged  of  by  the  con- 
clusion of  his  commentary  upon  the  seventh  head  : 

"  S.  P.  Q.  R.  was  sometimes  taken  for  these  words, 
Senatus  populusque  Romanus,  the  senate  and  people 
of  Rome  ;  but  now  they  may  truly  be  expressed  thus, 
Stultus  populus  quczrit  Romam,  a  foolish  people  that  run- 
neth to  Rome.  And  here  I  may  aptly  narrate  the  apo- 
logue or  tale  of  the  cat  and  the  mice.  The  cat  having  a 
long  time  preyed  upon  the  mice,  the  poor  creatures  at 
last,  for  their  safety,  contained  themselves  within  their 
holes  ;  but  the  cat,  finding  his  prey  to  cease,  as  being 
known  to  the  mice  that  he  was  indeed  their  enemy  and' 
a  cat,  deviseth  this  course  following,  viz.,  changeth  his 
hue,  getting  on  a  religious  habit,  shaveth  his  crown,  walks 
gravely  by  their  holes,  and  yet  perceiving  that  they 
kept  their  holes,  and  looking  out  suspected  the  worst, 
he  formally  and  father-like  said  unto  them,  '  Quod 
fueram  non  sum,  /rater,  caput,  aspice  tonsum  !  Oh, 
brother  !  I  am  not  as  you  take  me  for,  no  more  a  cat ;  see 
my  habit  and  shaven  crown !'  Hereupon  some  of  the 
more  credulous  and  bold  among  them  were  again,  by  this 
deceit,  snatched  up  ;  and  therefore,  when  afterwards  he 
came  as  before  to  entice  them  forth,  they  would  come 
out  no  more,  but  answered,  '  Cor  tibi  restat  idem,  vix  tibi 
prczsto  fidem.  Talk  what  you  can,  we  will  never  believe 
you  ;  you  have  still  a  cat's  heart  within  you.  You  do 
not  watch  and  pray,  but  you  watch  to  prey'  And  so  have 
the  Jesuits,  yea,  and  priests  too  ;  for  they  are  all  joined  in 
the  tails  like  Samson's  foxes.  Ephraim  against  Manasses, 
and  Manasses  against  Ephraim  ;  and  both  against  Judah." 

When  Coke  came  to  the  last  head,  he  showed  the  ex- 
tent to  which  courtly  flattery  was  in  that  age  profanely 
carried.  On  the  receipt  of  the  mysterious  letter  to  Lord 
Monteagle,  saying,  "  thoughe  theare  be  not  the  appear- 
ance of  ani  stir,  yet  i  saye  they  shall  receyve  a  terribel 
blowe  this  parleament,  and  yet  they  shall  not  seie  who 
hurts  them,"  the  Council  before  whom  it  was  laid,  with- 
out consulting  the  King,  immediately  suspected  the  true 
nature  of  the  plot,  and  took  measures  to  guard  against 
it.  The  Earl  of  Salisbury,  in  his  circular  giving  the  first 
account  of  it,  said,  "  We  conceived  that  it  could  not  by 
any  other  way  be  like  to  be  attempted  than  with  powder, 


*7o  REIGN  OF    JAMES    I.  [1606. 

while  the  King  was  sitting  in  that  assembly:  of  which 
the  Lord  Chamberlain  conceived  more  probability  be- 
cause there  was  a  great  vault  under  the  said  chamber. 
We  all  thought  fit  to  forbear  to  impart  it  to  the  King  until 
some  three  or  four  days  before  the  session."  '  Yet  Coke 
now  undertook  to  show  "how  the  King  was  divinely  il- 
luminated by  Almighty  God,  the  only  ruler  of  princes, 
like  an  angel  of  God,  to  direct  and  point  out  as  it  were 
to  the  very  place — to  cause  a  search  to  be  made  there, 
out  of  those  dark  words  of  the  letter  concerning  a  terrible 
bloiv." 

The  prisoners  were  undoubtedly  all  guilty,  and  there 
was  abundant  evidence  against  them  ;  but  we  must  de- 
plore the  manner  in  which  Coke  indulged  in  his  habit  of 
insulting  his  victims.  When  Sir  Everard  Digby,  inter- 
rupting him,  said  "  that  he  did  not  justify  the  fact,  but 
confessed  that  he  deserved  the  vilest  death  and  the  most 
severe  punishment  that  might  be,  but  that  he  was  an 
humble  petitioner  for  mercy  and  some  moderation  of 
justice,"  Coke  replied,  with  a  cold-blooded  cruelty  which 
casts  an  eternal  stain  upon  his  memory,  "that  he  must 
not  look  to  the  King  to  be  honored  in  the  manner  of  his 
death,  having  so  far  abandoned  all  religion  and  humanity 
in  his  action ;  but  that  he  was  rather  to  admire  the  great 
moderation  and  mercy  of  the  King  in  that,  for  so  exor- 
bitant a  crime,  no  new  torture  answerable  thereto  was 
devised  to  be  inflicted  on  him.  And  for  his  wife  and 
children  :  whereas  he  said  that  for  the  Catholic  cause  he 
was  content  to  neglect  the  ruin  of  himself,  his  wife,  his 
estate,  and  all,  he  should  have  his  desire,  as  it  is  in  the 
Psalms  :  Let  his  wife  be  a  widow,  and  his  children  vaga- 
bonds ;  let  his  posterity  be  destroyed,  and  in  the  next 
generation  let  his  name  be  quite  put  out." 

I  am  glad  for  the  honor  of  humanity  to  add,  from  the 
report,  "  Upon  the  rising  of  the  court,  Sir  Everard  Dig- 
by,  bowing  himself  towards  the  Lords,  said,  '  If  I  may 
but  hear  any  of  your  Lordships  say  you  forgive  me,  I 
shall  go  more  cheerfully  to  the  gallows.'  Whereunto  the 
Lords  said,  '  God  forgive  you,  and  we  do.'  "  * 

There  was  still  greater  interest  excited  in  the  case  of 
Garnet,  the  Superior  of  the  Jesuits,  who  was  suspected 

1  Winwood,  ii.  171.  »  2  St.  Tr.  159-195 


1606.]  EDWARD    COKE.  271 

of  having  devised  the  plot — who  had  certainly  concealed 
it  when  he  knew  it — but  against  whom  there  was  hardly 
any  legal  evidence.  His  trial  came  on  at  the  Guildhall 
of  the  city  of  London,  King  James  being  present,  with 
all  the  most  eminent  men  of  the  time.  Coke  tried  to 
outdo  his  exertions  against  the  conspirators  who  had 
taken  an  active  part  in  preparing  the  grand  explosion. 
When  he  had  detailed  many  things  which  took  place  in 
the  reign  of  Elizabeth,  he  turned  away  from  the  jury  and 
addressed  the  King,  showing  how  his  Majesty  was  en- 
titled to  the  crown  of  England  as  the  true  heir  of  Edward 
the  Confessor  as  well  as  of  William  the  Conqueror,  and 
how  he  was  descended  from  the  sovereign  who  had 
united  the  white  and  the  red  roses.  "  But,"  exclaimed 
the  orator,  "  a  more  famous  union  is,  by  the  goodness  of 
the  Almighty,  perfected  in  his  Majesty's  person  of  divers 
lions — two  famous,  ancient,  and  renowned  kingdoms,  not 
only  without  blood  or  any  opposition,  but  with  such  an 
universal  acclamation  and  applause  of  all  sorts  and  de- 
grees, as  it  were  with  one  voice,  as  never  was  seen  or  read 
of.  And  therefore,  most  excellent  King, — for  to  him  I 
will  now  speak, — 

"  Cum  triplici  fulvum  conjunge  leone  leonem, 

Ut  varias  atavus  junxerat  ante  rosas  ; 
Majus  opus  varies  sine  pugna  unire  leones, 
Sanguine  quam  varas  consociasse  rosas." 

He  again  asserted  that  a  miracle  had  been  worked 
to  save  and  to  direct  the  King ;  "  God  put  it  into  his 
Majesty's  heart  to  prorogue  the  parliament ;  and,  further, 
to  open  and  enlighten  his  understanding  out  of  a  mysti- 
cal and  dark  letter,  like  an  angel  of  God,  to  point  to  the 
cellar  and  command  that  it  be  searched ;  so  that  it  was 
discovered  thus  miraculously  but  even  a  few  hours  before 
the  design  should  have  been  executed."  Thus  he  de 
scribed  the  prisoner :  "  He  was  a  corrector  of  the  com- 
mon law  print  with  Mr.  Tottle  the  printer,  and  now  is  to 
be  corrected  by  the  law.  He  hath  many  gifts  and  endow- 
ments of  nature — by  art  learned — a  good  linguist — and 
by  profession  a  Jesuit  and  a  Superior.  Indeed  he  is 
superior  to  all  his  predecessors  in  devilish  treason — a 
doctor  of  Jesuits  ;  that  is,  a  doctor  of  six  JD's, — as  Dis- 


272  REIGN    OF    JAMES    I.  [1606. 

simulation,  deposing  of  princes,  disposing  of  kingdoms, 
Z?aunting  and  deterring  of  subjects,  and  destruction." 
Then  he  wittily  and  tastefully  concluded :  "  Qui  cum 
JCSH  itis,  non  itis  cum  Jesuitis,  for  they  encourage  them- 
selves in  mischief,  and  commune  among  themselves 
secretly  how  they  may  lay  snares,  and  say  that  no  man 
shall  see  them.  But  God  shall  suddenly  shoot  at  them 
with  a  swift  arrow,  that  they  shall  be  wounded  ;  inso- 
much that  whoso  seeth  it  shall  say  '  this  hath  God  done,' 
for  they  shall  perceive  that  it  is  his  work." ' 

The  prisoner  was  found  guilty ;  but,  giving  credit  to 
all  the  depositions  and  confessions,  they  did  not  prove 
upon  him  a  higher  offense  than  misprision  of  treason,  in 
not  revealing  what  had  been  communicated  to  him  in 
confession ;  and  execution  was  delayed  for  two  months, 
till,  after  much  equivocation,  he  was  induced  by  various 
contrivances  to  admit  that  the  plot  had  been  mentioned 
to  him  on  other  occasions,  although  he  averred  to  the 
last  that,  instead  of  consenting  to  it,  he  had  attempted 
to  dissuade  Fawkes  and  the  other  conspirators  from 
persisting  in  it. 

This  was  the  last  prosecution  in  which  Coke  appeared 
before  the  public  as  Attorney  General.  He  had  filled 
the  office  for  above  twelve  years — the  most  discreditable 
portion  of  his  career.  While  a  law  officer  of  the  Crown, 
he  showed  a  readiness  to  obtain  convictions  for  any 
offenses,  and  against  any  individuals,  at  the  pleasure  of 
his  employers ;  and  he  became  hardened  against  all  the 
dictates  of  justice,  of  pity,  of  remorse,  and  of  decency. 
He  gave  the  highest  satisfaction  first  to  Burleigh,  and 
then  to  his  son  and  successor,  Robert  Cecil,  become 
Earl  of  Salisbury,  and  all  legal  dignities  which  fell  were 
within  his  reach  ;  but,  fond  of  riches  rather  than  of  ease, 
he  not  only  despised  puisneships,  but  he  readily  con- 
sented to  Anderson  and  Gawdy  being  successively  ap- 
pointed to  the  office  of  Chief  Justice  of  the  Common 
Pleas,  at  that  time  the  most  lucrative,  and  considered 
the  most  desirable,  in  Westminster  Hall,  next  to  that 
of  Lord  Chancellor.  The  Attorney  General  was  sup- 
posed to  hold  by  as  secure  a  tenure  as  a  Judge  ;  and  his 
fees,  particularly  from  the  Court  of  Wards  and  Liveries, 
1 2  St.  Tr.  217-353. 


1606.]  EDWARD    COKE. 


273 


were  enormous,1  so  that  he  was  often  unwilling  to  be 
"  forked  up  to  the  bench,"  which,  with  a  sad  defalcation 
of  income,  offered  him  little  increase  of  dignity  ;  for,  till 
the  elevation  of  Jeffreys  in  the  reign  of  James  II.,  no 
common  law  judge  had  been  made  a  peer. 

But,  at  last,  Coke  felt  fatigued,  if  not  satiated,  with 
amassing  money  at  the  bar,  and,  on  the  death  of 
Gawdy,  he  resigned  his  office  of  Attorney  General  and 
became  Chief  Justice  of  the  Court  of  Common  Pleas. 
As  a  preliminary,  he  took  upon  himself  the  degree  of 
Sergeant-at-law ;  and  he  gave  rings  with  the  motto, 
"  Lex  est  tutissima  cassis."2  Mr.  Coventry,  afterwards 
Lord  Keeper,  whom  he  had  much  patronized,  acted  as 
his  PONY.* 

1  The  salary  of  Attorney-General  was  only  £81  6s.  8</.,  but  his  official 
emoluments  amounted  to  .£7000  a  year,  Coke's  private  practice,  besides, 
must  have  been  very  profitable  to  him. 

8  Dug.  Or.  Jur.  p.  102. 

3  I  have  been  favored,  by  a  learned  and  witty  friend  of  mine,  with  the 
following  "  Note  on  the  Sergeant's  Pony. — When  the  utter  barrister  is  ad- 
vanced '  ad  gradum  servientis  ad  legem,'  he  gives,  as  the  reporters  of  all  the 
courts  never  omit  to  record,  a  ring  with  a  motto  ;  a  posy,  sometimes  more 
or  less  applicable  to  the  donor  or  to  the  occasion, — sometimes  to  neither. 
These  rings  are  presented  to  persons  high  in  station  (that  for  the  Sovereign 
is  received  by  the  hands  of  the  Lord  Chancellor),  and  to  all  the  dignitaries 
of  the  law,  by  a  barrister  whom  the  Sergeant  selects  for  that  honorable  ser- 
vice, and  who  is  called  his  '  Pony.'  Why  ?  Simply  because  the  offering  he 
brings  is  the  honorarium,  compounding,  or  composition,  which  is  paid  by 
the  learned  graduate  upon  his  degree  of  sergcant-at-law.  IGNORAMUS  (act 
ii.  scene  7)  enters  with  money  in  a  bag.  Ignor. — '  Hie  est  legem  pone.  Hie 
sunt  sexcentae  coronas  pro  meo  caro  corde  Rosabelia.'  Upon  which  pas- 
sage, says  the  learned  commentator  Hawkins :  '  Legem  pone.  This  ap- 
pears to  have  been  a  cant  term  for  ready  money."  Dr.  Heylin,  in  his 
'  Voyage  of  France,'  p.  292,  speaking  of  the  university  of  Orleans,  '  In  the 
bestowing  of  their  degrees  here  they  are  very  liberal,  and  deny  no  man  that 
is  able  to  pay  his  fees.  Legem  ponere  is  with  them  more  poweiful  than 
legem  dicere  ;  and  he  that  hath  but  his  gold  ready,  shall  have  a  sooner 
despatch  than  the  best  scholar  upon  the  ticket.'  In  the  translation  of 
Rabelais  by  Ozell,  c.  xii.  book  4,  the  phrase  '  En  payant,'  is  rendered  '  the 
Legem  Pone.'  '  They  were  all  at  our  service  for  the  Legem  Pone.'  And 
finally,  Tusser,  in  his  '  Good  Husbandly  Lessons  worthy  to  be  followed  by 
such  as  will  thrive,'  prefixed  to  his  '  Four  Hundred  Points  of  Good  Hus- 
bandry,' recommends  punctuality  in  payment  of  debts  by  the  following 
distich  :— 

4  Use  Legem  Pone  to  pay  at  thy  day, 

But  use  not  "  Oremus  "  for  often  delay.' 

In  the  language,  therefore,  of  a  sergeant's  posy,  '  Ex  oetjuo  et  bono,'  I 
should  say  that,  regard  being  had  to  the  valuable  consideration  of  which  he 
is  the  bearer,  his  pony's  derivation  savors  more  of  the  bonus  than  Ui* 
equus" 

I— 18 


374  REIGN    OF    JAMES    I.  [1606. 

"  He  was  sworn  in  Chancery  as  Sergeant,"  says  Judge 
Croke,  the  reporter,  "  and  afterwards  went  presently 
into  the  Treasury  of  the  Common  Bench,  and  there  by 
Popham,  Chief  Justice,  his  party  robes  were  put  on,  and 
he  forthwith,  the  same  day,  was  brought  to  the  bar  as 
Sergeant,  and  presently  after  his  writ  read  and  count 
pleaded,  he  was  created  Chief  Justice,  and  sat  the  same 
day,  and  afterwards  rose  and  put  off  his  party  robes  and 
put  on  his  robes  as  a  Judge,  and  the  second  day  after  he 
went  to  Westminster,  with  all  the  Society  of  the  Inner 
Temple  attending  upon  him."  ' 

The  ceremony  of  riding  from  Sergeants'  Inn  to  West- 
minster in  the  party-colored  robes  of  a  Sergeant  was 
dispensed  with  in  his  case  by  special  favor ;  but  when 
Sir  Henry  Yelverton,  on  his  promotion  soon  after,  re- 
quested the  like  privilege,  "  the  Judges  resolved  that 
the  precedent  of  Sir  Edward  Coke  ought  not  to  be  fol- 
lowed.'" 

1  Cro.  Jac.  125.  » Ibid.  voL  iii.  in  trod.  p.  7. 


CHAPTER  VIII. 

CONTINUATION    OF  THE    LIFE    OF    SIR    EDWARD    COKE 

TILL  HE  WAS  DISMISSED  FROM  THE  OFFICE  OF 

CHIEF  JUSTICE  OF  THE  COURT 

OF  KING'S    BENCH. 

COKE,  while  Attorney  General,  was  liable  to  the 
severest  censure  ;  he  unscrupulously  stretched  the 
prerogative  of  the  Crown,  showing  himself  for  the 
time  utterly  regardless  of  public  liberty ;  he  perverted 
the  criminal  law  to  the  oppression  of  many  individuals; 
and  the  arrogance  of  his  demeanor  to  all  mankind  is  un- 
paralleled. But  he  made  a  noble  amends.  The  whole 
of  his  subsequent  career  is  entitled  to  the  highest  ad- 
miration. Although  holding  his  judicial  office  at  the 
pleasure  of  a  King  and  of  ministers  disposed  to  render 
Courts  of  Justice  the  instruments  of  their  tyranny  and 
caprice,  he  conducted  himself  with  as  much  lofty  inde- 
pendence as  any  who  have  ornamented  the  bench  since 
the  time  when  a  judge  can  only  be  removed  from  his 
office  for  misconduct,  on  the  joint  address  of  the  two 
Houses  of  Parliament.  Not  only  was  his  purity  unsus- 
pected in  an  age  when  the  prevalence  of  corruption  is 
supposed  by  some  to  palliate  the  repeated  instances 
of  bribe-taking  proved  upon  Bacon,  but  he  presented 
the  rare  spectacle  of  a  magistrate  contemning  the  threats 
of  power, — without  ever  being  seduced  by  the  love  of 
popular  applause  to  pronounce  decisions  which  could 
not  be  supported  by  precedent  and  principle.  His  man- 
ners even  became  much  more  bland  ;  he  listened  with 
patience  to  tedious  arguments  ;  he  was  courteous  when 
it  was  necessary  to  interpose,  and,  in  passing  sentence 
on  those  who  were  convicted,  he  showed  more  tender- 


276  RETGN    OF    JAMES    I,      [1606-1613. 

ness  for  them  than  he  had  been  accustomed  to  do  for 
those  whom  he  prosecuted  while  they  were  still  pre- 
sumed to  be  innocent. 

He  remained  Chief  Justice  of  the  Common  Pleas 
above  seven  years;  and,  considering  his  profound  learn- 
ing and  unwearied  diligence,  we  may,  without  disparage- 
ment to  any  of  his  successors,  affirm  that  the  duties  of 
the  office  have  never  since  been  performed  so  satisfac- 
torily. 

The  only  case  in  which  he  was  supposed  by  any  one  to 
have  improperly  attended  to  the  wishes  of  the  Govern- 
ment was  that  of  the  POSTNATI.  He  concurred  with 
the  majority  in  holding  that  all  persons  born  in  Scot- 
land after  the  accession  of  James  I.  to  the  throne  of 
England  were  entitled  to  the  privileges  of  native-born 
English  subjects.  Wilson,  in  allusion  to  it,  denounces 
Coke  as  "  metal  fit  for  any  stamp  royal."  '  I  think, 
myself,  that  the  decision  was  erroneous  ;  the  only  plau- 
sible analogy  to  support  it — that  persons  born  in  Nor- 
mandy and  Aquitaine  were  not  considered  aliens — being 
explained  away  by  the  consideration  that  those  prov- 
inces had  been  reconquered  from  France,  and  were  con- 
sidered as  held  of  the  crown  of  England.  But  our 
Chief  Justice  was  not  much  acquainted  with  interna- 
tional law,  and  he  was  satisfied  with  the  doctrine  of  "  re- 
mitter" as  laid  down  by  Littleton, — applying  it  to  the 
case  of  Edward  III.  and  Henry  V.  recovering  the  French 
provinces  which  had  belonged  by  right  of  birth  to  Wil- 
liam the  Conqueror  and  Henry  II.,  and  which  were 
therefore  to  be  considered,  when  again  annexed  to  Eng- 
land, as  taken  by  descent,  and  not  by  conquest, — or,  as  he 
called  it,  by  purchase.  His  opinion,  unconsciously  to 
himself,  may  have  been  influenced  by  the  efforts  he  had 
made  while  Attorney  General  to  please  the  King  in 
bringing  about  a  union  with  Scotland  ;  but  the  warm 
piaise  which  he  bestows  upon  the  decision,  in  reporting 
it,  should  remove  all  doubt  as  to  his  sincerity  on  this  oc- 
casion, and  the  inflexibility  which  led  to  his  downfall 
should  relieve  his  memory  from  the  scandal  of  seeking 
royal  favor  after  being  sworn  to  administer  the  law  as  a 
Judge. 

1  Life  and  Reign  of  King  James,  p.  41 


i,6 1 1.]  EDWARD    COKE.  277 

A  plan  was  now  going  forward  systematically  to  carry 
into  effect  the  notion  which  James  entertained,  that  he 
was  entitled  to  rule  in  England  as  an  absolute  sover- 
eign. One  of  the  engines  chiefly  relied  upon  for  success 
was  the  Court  of  HIGH  COMMISSION.  This  had  been 
established,  at  the  accession  of  Queen  Elizabeth,1  for 
cases  purely  of  an  ecclesiastical  nature,  and  had  been  so 
used  during  the  whole  of  her  reign  ;  but,  as  it  was  gov- 
erned by  no  fixed  rules,  and  as  it  decided  without 
appeal,  an  attempt  was  now  made  to  subject  all  persons, 
lay  and  spiritual,  to  its  jurisdiction,  and  to  give  it  cog- 
nizance of  temporal  rights  and  offenses.  The  Court 
having  proceeded  hitherto  only  by  citation,  a  new  at- 
tempt was  made  to  send  a  pursuivant  at  once  into  the 
house  of  any  person  complained  against,  to  arrest  him, 
and  to  imprison  him.  This  matter  being  discussed  in 
the  Court  of  Common  Pleas,  Lord  Chief  Justice  Coke, 
supported  by  his  brethren,  determined  that  the  High 
Commission  had  no  such  power ;  that  the  practice  was 
contrary  to  MAGNA  CHARTA  ;  and  that,  if  the  pursuivant 
should  be  killed  in  the  attempt,  the  party  resisting  him 
would  not  be  guilty  of  murder.8  The  authority  of  the 
Court  of  Common  Pleas  to  check  the  usurpations  of  the 
High  Commission  by  granting  prohibitions  was  con- 
tested, but  Coke  successfully  supported  it,  and  in  various 
instances  fearlessly  stopped  proceedings  before  this  tri- 
bunal which  the  King  was  known  to  favor.8 

At  last  the  ingenious  device  was  resorted  to  of  includ- 
ing Coke  himself  among  the  Judges  of  the  High  Com- 
mission, in  the  hope  that  he  would  then  no  longer  op- 
pose it.  But  he  resolutely  refused  to  sit  as  a  member  of 
the  Court ;  whereupon  "  the  Lord  Treasurer  said  that 
the  principal  feather  was  plucked  from  the  High  Com- 
missioners." *  This  Court,  however,  when  Coke  was  re- 
moved from  the  bench,  renewed  and  extended  its  usurp- 
ations, and  made  itself  so  odious  to  the  whole  nation, 
that  it  was  entirely  swept  away  by  one  of  the  first  acts 
of  the  Long  Parliament.* 

1  Stat.  I  Eliz.  c.  I.  *  12  Rep.  49. 

s  Langdale's  case,  12  Rep.  50.  58  ;  Sir  William  Chauncey's  case,  ib.  82. 
4  12  Rep.  88 

«  An  illegal  attempt  to  revive  it  by  James  II.  was  one  of  the  causes  of 
he  P  evolution. 


278  REIGN    OF    JAMES    I.  |x6n. 

The  High  Commission  being  silenced  for  a  time, 
Archbishop  Bancroft  suggested  the  notable  expedient 
of  "  the  King  judging  whatever  cause  he  pleased  in  his 
own  person,  free  from  all  risk  of  prohibition  or  appeal." 
Accordingly,  on  a  Sunday,  the.  King  summoned  all  the 
Judges  before  him  and  his  Council,  at  Whitehall,  to 
know  what  they  could  say  against  this  proposal.  The 
Archbishop  thus  began : 

"The  Judges  are  but  the  delegates  of  your  Majesty, 
and  administer  the  law  in  your  name.  What  may  be 
done  by  the  agent  may  be  done  by  the  principal ;  there- 
fore your  Majesty  may  take  what  causes  you  may  be 
pleased  to  determine  from  the  determination  of  the 
Judges,  and  determine  them  yourself.  This  is  clear  in 
divinity;  such  authority,  doubtless,  belongs  to  the  King 
by  the  Word  of  God  in  the  Scriptures." 

Coke,  C.  J.  (all  the  other  Judges  assenting)  :  "  By  the 
law  of  England,  the  King  in  his  own  person  cannot  ad- 
judge any  case,  either  criminal,  as  treason,  felony,  &c., 
or  betwixt  party  and  party  concerning  his  inheritance  or 
goods  ;  but  these  matters  ought  to  be  determined  in 
some  court  of  justice.  The  form  of  giving  judgment  is 
idea  consideration  est  per  curiam  ;  so  the  Court  gives  the 
judgment.  Richard  III.  and  Henry  VII.  sat  in  the  Star 
Chamber,  but  this  was  to  consult  with  the  justices  upon 
certain  questions  proposed  to  them,  and  not  in  judicio. 
So  in  the  King's  Bench  he  may  sit,  but  the  Court  gives 
the  judgment.  Ergo,  the  King  cannot  take  any  cause  out 
of  any  of  his  courts,  and  give  judgment  upon  it  himself. 
No  king  since  the  Conquest  has  assumed  to  himself  to 
give  nny  judgment  in  any  cause  whatsoever  which  con- 
cerned the  administration  of  justice  within  this  realm. 
So  the  King  cannot  arrest  any  man,  as  laid  down  in  the 
Year  Book  i  H.  VII.  7.  4,  '  for  the  party  cannot  have 
remedy  against  the  King'  So  if  the  King  give  any  judg- 
ment, what  remedy  can  the  party  have?1  We  greatly 
marveled  that  the  most  reverend  prelate  durst  assert 
that  such  absolute  power  and  authority  belongs  to  the 
King  by  the  Word  of  God,  which  requires  that'the  laws 
even  in  heathen  countries  be  obeyed.  Now  it  is  pro- 

1  So  Markham,  C.  J.,  told  Edward  IV.  that  "  the  King  cannot  arrest  a 
man  for  suspi  ;ion  of  treason  or  felony,  as  others  his  lieges  uiay." 


46i2.]  EDWARD     COKE.  279 

vided  by  Magna  Charta,  and  other  statutes  duly  passed 
and  assented  to  by  the  Crown,  '  Quod  tarn  majores  quam 
minores  justitiam  habeant  et  recipiant  in  CURIA  Domini 
Regis.1  By  43  Ed.  III.  c.  3,  no  man  shall  be  put  to  an- 
swer without  presentment  before  the  justices,  or  by  due 
process  according  to  the  ancient  law  of  the  land ;  and 
any  thing  done  to  the  contrary  shall  be  void.  From  a 
roll  of  parliament  in  the  Tower  of  London,  17  Richard 
II.,  it  appears  that  a  controversy  of  land  between  the 
parties  having  been  heard  by  the  King,  and  sentence 
having  been  given,  it  was  reversed  for  this, — that  the 
matter  belonged  to  the  common  law." 

King  James  :  "  My  Lords,  I  always  thought,  and  by 
my  saul  I  have  often  heard  the  boast,  that  your  English 
law  was  founded  upon  reason.  If  that  be  so,  why  have 
not  I  and  others  reason  as  well  as  you  the  Judges?" 

Coke,  C.  J,:  "  True  it  is,  please  your  Majesty,  that 
God  has  endowed  your  Majesty  with  excellent  science 
as  well  as  great  gifts  of  nature ;  but  your  Majesty  will 
allow  me  to  say,  with  all  reverence,  that  you  are  not 
learned  in  the  laws  of  this  your  realm  of  England,  and 
I  crave  leave  to  remind  your  Majesty  that  causes  which 
concern  the  life  or  inheritance,  or  goods  or  fortunes,  of 
your  subjects,  are  not  to  be  decided  by  natural  reason, 
but  by  the  artificial  reason  and  judgment  of  law,  which 
lav/  is  an  art  which  requires  long  study  and  experience 
before  that  a  man  can  attain  to  the  cognizance  of  it. 
The  law  is  the  golden  met-wand  and  measure  to  try  the 
causes  of  your  Majesty's  subjects,  and  it  is  by  the  law 
that  your  Majesty  is  protected  in  safety  and  peace." 

King  James  (in  a  great  rage) :  "  Then  I  am  to  be  under 
the  law — which  it  is  treason  to  affirm." 

Coke,  C.  J.:  "  Thus  wrote  Bracton,  '  Rex  non  debet 
esse  sub  homine,  sed  sub  DEO  ET  LEGE.'  " ' 

This  conference  made  a  great  sensation  on  the  public 
mind.  We  have  this  account  of  it  in  a  contemporary 
letter: 

"  On  Sunday,  before  the  King's  going  to  New  Market, 

*  *  *  my  Lord  Coke  and  all  the  Judges  of  the  common 

law  were  before  his  Majesty,  to  answer  some  complaints 

of  the  civil  lawyers  for  the  general  granting  of  prohibi- 

1 12  Coke,  63. 


280  REIGN    OF    JAMES    I  [1612. 

tions.  I  heard  that  the  Lord  Coke,  amongst  other  of- 
fensive speech,  should  say  to  his  Majesty  that  his  High- 
ness was  defended  by  his  laws ;  at  which  saying,  and 
with  other  speech  then  used  by  the  Lord  Coke,  his 
Majesty  was  very  much  offended,  and  told  him  that  he 
spake  foolishly,  and  said  that  he  was  not  defended  by  his 
laws,  but  by  God ;  and  so  gave  the  Lord  Coke,  in  other 
words  a  very  sharp  reprehension  both  for  that  and  other 
things,  and  withal  told  him  that  Sir  Thomas  Compton, 
the  Judge  of  the  Admiralty  Court,  was  as  good  a 
Judge."1 

James  is  said,  nevertheless,  to  have  tried  his  hand  as 
a  Judge,  but  to  have  been  so  much  perplexed  when  he 
had  heard  both  sides,  that  he  abandoned  the  trade  in 
despair,  saying,  "  I  could  get  on  very  well  hearing  one 
side  only,  but  when  b^oth  sides  have  been  heard,  by  my 
saul  I  know  not  which  is  right."  The  terror  of  Coke, 
however,  was  the  true  reason  for  abandoning  the  scheme, 
for,  — if  it  had  not  thus  been  boldly  announced  as  illegal, 
— by  the  aid  of  sycophants  it  would  have  proceeded, 
and  much  injustice  would  have  been  perpetrated. 

Coke  likewise,  for  a  time,  gave  a  serious  check  to  arbi- 
trary proceedings  in  the  Courts  of  the  Lord  President 
of  Wales  and  of  the  Lord  President  of  the  North. 
Having  been  summoned,  with  his  brother  Judges,  before 
the  King  and  the  Council,  on  a  complaint  of  the  pro- 
hibitions he  had  granted  against  these  proceedings,  he 
justified  fully  all  that  he  had  done,  and  thus  concluded  :• 
"  We  do  hope  that  whereas  the  Judges  of  this  realm 
have  been  more  often  called  before  your  Lordships  than 
in  former  times  they  have  been  (which  is  much  observed, 
and  gives  much  emboldening  to  the  vulgar),  after  this 
day  we  shall  not  be  so  often  upon  such  complaints  here- 
after called  before  you."*  On  this  occasion  he  had  a 
lucky  escape,  for  he  says,  "  the  King  was  well  satisfied 
with  these  reasons  and  causes  of  our  proceedings,  who, 
of  his  grace,  gave  me  his  royal  hand,  and  I  departed 
from  thence  in  his  favor." ' 

But  Coke  incurred  the  deepest  displeasure  of  his 
Majesty  by  declaring  against  a  pretension — called  a 

1  Judge's  Illustrations,  iii  564.  *  12  Coke,  50. 

'  13  Co.  33. 


1612.]  EDWARD    COKE.  ;8i 

V 

"  prerogative  " — which  might  soon  entirely  have  super- 
seded parliament.  It  had  been  usual  for  the  Crown, 
from  ancient  times,  to  issue  proclamations  to  enforce 
the  law ;  and  sometimes  they  had  introduced  new  regu- 
lations of  police,  which,  being  of  small  importance,  and 
for  the  public  benefit,  were  readily  acquiesced  in. 
James,  from  his  accession,  began  to  issue  proclamations 
whenever  he  thought  that  the  existing  law  required 
amendment.  At  last,  on  the  /th  of  July,  1610,  the 
Commons,  roused  by  these  extraordinary  attempts  to 
supersede  their  functions,  presented  an  address  to  the 
Crown,  in  which  they  say : — 

"  It  is  apparent  both  that  proclamations  have  been 
of  late  years  much  more  frequent  than  before,  and  that 
they  are  extended  not  only  to  the  liberty,  but  also  to 
the  goods,  inheritances,  and  livelihood  of  men  ;  some  of 
them  tending  to  alter  points  of  the  law,  and  make  them 
new ;  other  some  made  shortly  after  a  session  of  parlia- 
ment, for  matter  directly  rejected  in  the  same  session  : 
others  appointing  punishments  to  be  inflicted  before 
lawful  trial  and  conviction ;  some  containing  penalties 
in  form  of  penal  statutes ;  some  referring  the  punish- 
ment of  offenders  to  courts  of  arbitrary  discretion,  which 
have  laid  heavy  and  grievous  censures  upon  the  delin- 
quents ;  some,  as  the  proclamation  for  starch,  accom- 
panied with  letters  commanding  inquiry  to  be  made 
against  transgressors  at  the  quarter-sessions  ;  and  some 
vouching  former  proclamations,  to  countenance  and  war- 
rant the  latter." 

On  Bacon,  now  Solicitor  General,  and  in  high  favor 
at  Court,  was  imposed  the  delicate  task  of  presenting 
this  address,  which  he  tried  to  soften  by  saying : — 

"  We  are  persuaded  that  the  attribute  which  was 
given  by  one  of  the  wisest  writers  to  two  of  the  best 
emperors,  '  divus  Nerva  and  divus  Trajanus,'  so  saith 
Tacitus,  '  res  olim  insociabiles  miscuerunt,  imperium  et 
libertatem,'  may  be  truly  applied  to  your  Majesty.  For 
never  was  there  such  a  conservator  of  regality  in  a 
crown,  nor  ever  such  a  protector  of  lawful  freedom  in  a 
subject.  Let  not  the  sound  of  grievances,  excellent 
Sovereign,  though  it  be  sad,  seem  harsh  to  your  princely 
ears.  It  is  but  gemitus  columbce,  the  mourning  of  a 


28a  REIGN    OF    JAMES    I.  [i6ia. 

dove,  with  that  patience  and  humility  of  heart  which 
appertaineth  to  loving  and  loyal  subjects." 

James,  however,  thinking  that  this  complaint  re- 
sembled more  the  roaring  of  a  lion,  was  much  alarmed  ; 
and,  really  believing,  from  the  flatterers  who  surrounded 
him,  that  he  possessed  rightfully  the  power  which  he 
assumed,  he  ordered  all  the  Judges  to  be  summoned  and 
consulted  "  whether  it  did  not  by  law  belong  to  him." 
Coke  says : — 

"  I  did  humbly  desire  that  I  might  have  conference 
with  my  brethren  the  Judges  about  the  answer  to  the 
King.  To  which  the  Lord  Chancellor  said  that  every 
precedent  had  at  first  a  commencement,  and  that  he 
would  advise  the  Judges  to  maintain  the  power  and 
prerogative  of  the  King,  and  in  cases  in  which  there  is 
no  authority  or  precedent  to  leave  it  to  the  King  to 
order  in  it  according  to  his  wisdom,  and  for  the  good  of 
his  subjects,  or  otherwise  the  King  would  be  no  more 
than  the  Duke  of  Venice."  Coke,  C.  J. — "  True  it  is 
that  every  precedent  hath  a  commencement ;  but  where 
authority  and  precedent  is  wanting,  there  is  need  of 
great  consideration  before  that  any  thing  of  novelty 
shall  be  established,  and  to  provide  that  this  be  not 
against  the  law  of  the  land  ;  for  the  King  cannot,  with- 
out parliament,  change  any  part  of  the  common  law,  nor 
create  any  offense  by  his  proclamation  which  was  not  an 
offense  before.  But  I  only  desire  to  have  a  time  of  con- 
sideration and  conference  ;  for  deliberandum  est  diu  quod 
statuendum  est  semel" 

After  much  solicitation,  time  was  at  last  given,  and 
the  consulted  Judges  all  concurred  in  an  answer  drawn 
by  Coke — 

"  That  the  King  by  his  proclamation  cannot  create 
any  offense  which  was  not  an  offense  before,  for  then  he 
may  alter  the  law  of  the  land  by  his  proclamation  in  a 
high  point ;  for  if  he  may  create  an  offense  where  none 
is,  upon  that  ensues  fine  and  imprisonment.  Also  the 
law  of  England  is  divided  into  three  parts :  common 
law,  statute  law,  and  custom  ;  but  the  King's  proclama- 
tion is  none  of  them.  Also,  malum,  aut  est  malum  in  se, 
aut  prohibitum  ;  that  which  is  against  common  law  is 
malum  in  se  ;  malum  prohibitum  is  such  an  offense  as  is 


1613.]  EDWARD     COKE.  283 

prohibited  by  act  of  parliament.  Also  it  was  resolved, 
that  the  King  hath  no  prerogative  but  that  which  the 
law  of  the  land  allows  him.  But  the  King,  for  preven- 
tion of  offenses,  may  admonish  his  subjects  by  proclama- 
tion that  they  keep  the  laws,  and  do  not  offend  them, 
upon  punishment  to  be  inflicted  by  the  law."2 

Coke,  in  reporting  these  resolutions  of  the  Judges, 
adds,  on  his  own  authority,  "  The  King,  by  his  procla- 
mation or  otherwise,  cannot  change  any  part  of  the 
common  law,  or  statute  law,  or  the  customs  of  the 
realm.  Also,  the  King  cannot  create  any  offense,  by  his 
prohibition  or  proclamation,  which  was  not  an  offense 
before,  for  that  were  to  change  the  law,  and  to  make  an 
offense  which  was  not ;  for  ubi  non  est  lex,  ibi  non  est 
transgressio  ;  ergo,  that  which  cannot  be  punished  with- 
out proclamation  cannot  be  punished  with  it.""  Yet 
Hume,  in  commenting  on  the  issuing  of  proclamations 
by  James  I.,  has  the  audacity  to  say,  "  The  legality  of 
this  exertion  was  established  by  uniform  and  undisputed 
practice,  and  was  even  acknowledged  by  lawyers,  who 
made,  however,  this  difference  between  laws  and  procla- 
mations, that  the  authority  of  the  former  was  perpetual, 
that  of  the  latter  expired  with  the  Sovereign  who 
emitted  them."3 

Coke  met  with  a  very  sensible  mortification,  in  being 
promoted  to  be  Chief  Justice  of  the  King's  Bench,  on  the 
death  of  Chief  Justice  Fleming.  This  office,  although 
of  higher  rank,  was  then  considered  less  desirable  than 
the  chiefship  of  the  Common  Pleas,  for  the  profits  of  the 
former  were  much  less,  with  increased  peril  of  giving 
offense  to  the  Government,  and  so  being  dismissed. 
Coke's  seeming  promotion  was  owing  to  the  spite  and 
craft  of  his  rival.  Bacon  was  impatient  for  the  Attorney 

1  12  Rep.  74.  *  12  Coke,  75-. 

*  Vol.  vi.  p.  52.  We  ought  not  hastily  to  accuse  him  of  willful  misrepre- 
sentation or  suppression,  for  he  was  utterly  unacquainted  with  English 
juridical  writers.  Gibbon  entered  upon  a  laborious  study  of  the  Roman 
civil  law,  to  fit  him  to  write  his  DECLINE  AND  FALL  ;  but  Hume  never  had 
the  slightest  insight  into  our  jurisprudence,  and  his  work,  however  ad- 
mirable as  a  literary  composition,  is  a  very  defective  performance  as  a 
history.  Of  the  supposed  distinction  between  a  statute  and  nftvc/amotu*, 
— that  the  former  was  of  perpetual  obligation  till  repealed,  and  that  the 
latter  lost  its  force  on  a  demise  of  the  crown, — I  do  not  find  a  trace  in  any 
of  our  books. 


284  REIGN    OF    JAMES    I.  [1613. 

General's  place,  filled  by  Hobart,  who  was  not  willing  to 
change  it  for  the  chiefship  of  the  King's  Bench,  but 
would  for  that  of  the  Common  Pleas.  Bacon  thereupon 
sent  to  the  King  "  reasons  why  it  should  be  exceedingly 
much  for  his  Majesty's  service  to  remove  the  Lord  Coke 
from  the  place  he  now  holdeth,  to  be  Chief  Justice  of 
England,  and  the  Attorney  to  succeed  him,  and  the  Soli- 
citor the  Attorney."  Among  the  reasons  urged  for  this 
arrangement  were  these  : — 

"  First,  it  will  strengthen  the  King's  causes  greatly 
among  the  Judges,  for  both  my  Lord  Coke  will  think 
himself  near  a  privy  councillor's  place,  and  thereupon 
turn  obsequious,  and  the  Attorney  General,  a  new  man, 
and  a  grave  person  in  the  Judge's  place,  will  come  in 
well  to  the  other,  and  hold  him  hard  to  it,  not  without 
emulation  between  them  who  shall  please  the  King  best. 
Besides  the  removal  of  my  Lord  Coke  to  a  place  of  less 
profit,  though  it  be  with  his  will,  yet  will  it  be  thought 
abroad  a  kind  of  discipline  to  him  for  opposing  himself 
in  the  King's  causes,  the  example  thereof  will  contain 
others  in  more  awe." 

The  King  consented  ;  Coke  was  obliged  to  agree  to 
the  translation,  under  a  hint  that  he  might  be  turned  off 
entirely ;  and  Bacon,  now  Attorney  General,  in  his  Apoph- 
thegms thus  exults  in  his  own  roguery :  "  After  a 
few  days  the  Lord  Coke,  meeting  with  the  King's  At- 
torney, said  to  him,  '  Mr.  Attorney,  this  is  all  your  do- 
ing ;  it  is  you  that  have  made  this  stir  !'  Mr.  Attorney 
answered,  '  Ah,  my  Lord,  your  Lordship  all  this  while 
hath  grown  in  breadth,  you  must  needs  now  grow  in 
height,  or  else  you  would  be  a  monster.'  ' 

There  cannot  be  a  doubt  that  Coke's  elevation  was 
meant  as  a  punishment,  and  that  Bacon,  the  contriver 
of  it,  already  contemplated  his  ruin ;  but,  to  save  ap- 
pearances, he  was  treated  with  outward  respect,  and  in  a 
a  few  days  afterwards  he  was  sworn  of  the  Privy  Coun- 
cil. 

He  took  his  seat  in  the  Court  of  King's  Bench  in 
Michaelmas  Term,  1613,  and  presided  there  three  years 
with  distinguished  ability  and  integrity.  He  reconciled 
himself  to  the  loss  of  profit  by  the  high  rank  he  now  en- 
joyed, and  he  took  particular  delight  in  styling  himself 


1615.]  EDWARD    COKE.  285 

"  Chief  Justice  of  England,"  a  title  which  his  predeces- 
sors had  sometimes  assumed,  although,  since  the  office 
of  Grand  Justiciar  had  ceased  to  exist,  they  had  usually 
been  only  called  "  Chief  Justice  of  the  Court  of  King's 
Bench." 

Hopes  were  entertained  that  he  really  was  becoming 
"obsequious."  A  "  BENEVOLENCE"  being  demanded  to 
supply  the  pressing  necessities  of  the  Crown,  he  muni- 
ficently gave  £2000  as  his  own  contribution,  while  very 
small  sums  could  be  squeezed  out  of  his  brother  Judges  ; 
— the  legality  of  the  Benevolence  being  questioned  in  the 
Star  Chamber,  after  some  hesitation  he  pronounced  an 
opinion  that  it  was  not  illegal.  Mr.  Attorney  General  Ba- 
con thereupon  wrote  to  the  King, — "  My  Lord  Chief  Jus- 
tice delivered  the  law  for  the  Benevolence  strongly ;  I 
would  he -had  done  it  timely."  But  the  ground  he  took 
was,  that  "a  Benevolence  was  a  free-will  offering — not  a 
tax;"  and  Bacon  added,  "  It  will  appear  most  evidently 
what  care  was  taken  that  that  which  was  then  done  might 
not  have  the  effect,  no,  nor  the  show,  no,  nor  so  much  as 
the  shadow  of  a  tax."  l  Coke  thus  proved  that  he  would 
not  play  a  factious  part  for  the  sake  of  popularity,  and 
that  he  was  disposed  to  support  the  proceedings  of  the 
Government  as  far  as  his  conscience  would  permit. 

But  Bacon,  the  Attorney  General — now  in  possession 
of  the  King's  ear — with  a  view  to  strengthen  his  favor  at 
Court,  and  to  insure  his  acquisition  of  the  Great  Seal, 
about  which  he  cared  more  than  the  completion  of  his 
NOVUM  ORGANUM,  originated  proceedings  contrary  to 
the  plainest  dictates  of  law,  justice,  and  humanity.  One 
of  the  worst  of  these  was  the  prosecution  for  high  trea- 
sou  of  Peacham,  an  aged  and  pious  clergyman,  against 
whom  the  only  case  was,  that  upon  breaking  into  his 
house,  and  searching  his  papers,  there  was  found  a  MS. 
sermon — which  he  had  never  preached — inculcating  the 
doctrine,  that,  under  certain  circumstances,  subjects  may 
resist  a  sovereign  who  attempts  to  subvert  their  liber- 
ties. In  the  vain  hope  of  making  him  accuse  himself,  he 
was  placed  upon  the  rack  in  the  presence  of  the  law 
officers  of  the  Crown,  and  "  examined  before  torture,  in 
torture,  between  torture,  and  after  torture."*  To  ob- 

1 2  St.  Tr.  904  ;  12  Rep.  119.      *  Letter  to  the  King,  signed  by  Bacon. 


*86  REIGN    OF    JAMES    I.  [1615. 

tain  a  conviction  seemed  hopeless  without  a  previous 
opinion  obtained  irregularly  from  the  Judges.  Thus  Mr. 
Attorney  reported  progress  to  King  James,  as  to  his  en- 
deavors : — 

"  For  Peacham's  case  I  have,  since  my  last  letter,  been 
with  Lord  Coke  twice  ;  once  before  Mr.  Secretary's  going 
down  to  your  Majesty,  and  once  since,  which  was  yester- 
day ;  at  the  former  of  which  times  I  delivered  him 
Peacham's  papers,  and  at  this  latter  the  precedents, 
which  I  had  with  care  gathered  and  selected  ....  He 
fell  upon  the  same  allegation  which  he  had  begun  at  the 
council  table,  '  that  judges  were  not  to  give  opinions  by 
fractions,  but  entirely  according  to  the  vote,  whereupon 
they  should  settle  upon  conference,  and  that  this  auri- 
tular  taking  of  opinions,  single  and  apart,  was  new  and 
dangerous ;'  and  other  words  more  vehement  than  I  re- 
peat." 

At  this  interview.  Coke  finally  refused  to  give  any 
opinion,  and  desired  the  precedents  to  be  left  with  him. 
Soon  after,  Bacon  again  wrote  to  the  King,  "  Myself 
yesterday  took  the  Lord  Coke  aside,  after  the  rest  were 
gone,  and  told  him  all  the  rest  were  ready,  and  I  was  now 
to  require  his  Lordship's  opinion,  according  to  my  com- 
mission. He  said  I  should  have  it,  and  repeated  that 
twice  or  thrice,  and  said  he  would  tell  it  me  within  a 
very  short  time,  though  he  were  not  at  that  instant 
ready."  In  three  days  Bacon  wrote  finally  to  the  King, 
— "  I  send  your  Majesty  enclosed  my  Lord  Coke's  an- 
swers ;  I  will  not  call  them  rescripts,  much  less  oracles. 
They  are  of  his  own  hand.  I  thought  it  my  duty,  as 
soon  as  I  received  them,  instantly  to  send  them  to  your 
Majesty,  and  forbear  for  the  present  to  speak  farther  of 
them." 

Peacham  was  nevertheless  brought  to  trial,  and  found 
guilty  of  treason  ;  but  such  indignation  was  excited  by 
this  judicial  outrage,  that  the  sentence  of  the  law  was  not 
carried  into  execution,  and -a  lingering  death  was  in- 
flicted upon  him  in  prison  by  disease.  No  part  of  the 
national  disgrace  could  be  cast  upon  the  upright  and 
resolute  Chief  Justice  of  the  King's  Bench.1 

He  likewise  escaped  all  censure  in  the  affair  of  the 

1  See  5  Bacon's  Works,  353  ;  Cro.  Car.  125. 


i6i6.]  EDWARD     COKE.  287 

murder  of  Sir  Thomas  Overbury.  He  had  not  been  ac- 
cessory to  the  infamous  sentence  by  which,  to  please  the 
caprice  of  the  King,  the  young  Countess  of  Essex,  after 
carrying  on  an  illicit  intercourse  with  a  paramour,  ob- 
tained a  divorce  from  her  husband  on  the  pretext  that 
she  still  remained  a  virgin.1  At  her  second  marriage  to 
the  Earl  of  Somerset,  he  made  her  a  wedding  present ; 
but,  in  thus  assisting  to  give  fclat  to  the  ceremony,  he 
followed  the  example  of  all  courtiers,  and  of  the  Lord 
Mayor  and  citizens  of  London.  Two  years  after,  when 
the  rumor  broke  out  that  before  this  ill-starred  union 
she  and  her  new  husband  had  instigated  the  murder  of 
the  man  who  had  tried  to  prevent  it,  he  put  forth  all  his 
energy  to  get  at  truth  ;  although  the  King,  from  per- 
sonal liking  or  some  mysterious  reason,  wished  to  screen 
the  most  guilty  parties  from  punishment. 

In  former  times,  the  Chief  Justice  and  the  Puisne 
Judges  of  the  Court  of  King's  Bench  often  acted  as 
police  magistrate,  taking  preliminary  examinations,  and 
issuing  warrants  for  the  apprehension  of  criminals.  In 
this  case  Coke  took  not  less  than  300  examinations,  writ- 
ing down  the  words  of  the  witnesses  and  of  the  parties 
accused  with  his  own  hand.  "The  Lord  Chief  Justice's 
name  thus  occurring,"  observed  Bacon,  "  I  cannot  pass 
by  it,  and  yet  I  have  not  skill  to  flatter.  But  this  I  will 
say  of  him,  that  never  man's  person  and  his  place  were 
better  met  in  business  than  my  Lord  Coke  and  my  Lord 
Chief  Justice  in  the  case  of  Overbury." 

Nevertheless,  we  should  consider  some  of  his  proceed- 
ings very  strange  if  they  were  imitated  by  a  Chief 
Justice  of  the  present  age.  Having  granted  the  warrant 
he  actually  went  to  Royston,  where  the  Earl  of  Somer- 
set was  with  the  King,  that  he  might  himself  super- 
intend the  arrest.  Along  with  the  other  judges  who 
were  to  preside  at  the  trial,  he  marshaled  the  evidence, 
and  concerted  in  what  order  it  should  be  laid  before  the 
jury.4  When  charging  the  grand  jury,  he  told  them  that 

»  2  St.  Tr.  786. 

*  There  is  extant  a  very  curious  letter  of  Mr.  Attorney  General  Bacon  to 
the  King,  about  getting  up  the  case: — "  If  your  Majesty  vouchsafe  to 
direct  it 'yourself,  that  is  the  best  ;  if  not,  I  humbly  pray  you  to  require  mj 
Lord  Chancellor  that  he,  togethei  with  my  Lord  Chief  Justice,  \vill  tonfci 
with  myself  and  my  fellows  that  shall  be  used  for  the  marshaling  anc 


288  REIGN    OF    JAMES    I.  [1616 

"  of  all  felonies,  murder  is  the  most  horrible ;  of  all  mur- 
ders, poisoning  is  'he  most  detestable  ;  and  of  all  poison- 
ings, the  lingering  poison,"— adding  that  "poisoning  was 
a  popish  trick."  When  Mrs.  Turner,  one  of  the  subor- 
dinate agents,  was  on  her  trial,  he  said  "  she  had  the 
seven  deadly  sins ;  for  she  was  a  whore,  a  bawd,  a 
sorcerer,  a  witch,  a  papist,  a  felon,  and  a  murderer."  Sir 
John  Hollis  and  others  having,  at  the  execution  of 
Wcston,  who  had  been  employed  to  administer  the  poi- 
son, made  some  observations  on  the  manner  in  which  his 
trial  had  been  conducted  by  Lord  Chief  Justice  Coke, — 
the  same  Chief  Justice  Coke,  sitting  in  the  Star  Cham- 
ber, passed  sentence  upon  them,  ordering  that,  besides 
being  subjected  to  fine  and  imprisonment,  they  should 
make  an  humble  apology  to  himself  at  the  bar  of  the 
Court  of  King's  Bench.  He-then  blurted  out  this  witty 
parody, — 

"  Et  quse  tanto  fuit  Tyburn  tibi  causa  videndi  ?" 

adding  that  "  he  himself  never  had  attended  executions 
after  reading  the  lines  in  Ovid — 

"  Et  lupus  et  vulpes  instant  morientibus 
Et  qucecunque  minor  nobilitate  fera  est." 

At  the  arraignment  of  the  Countess  of  Somerset,  al- 
though she  pleaded  guilty,  and  «Coke  attended  only  as 
assessor  to  the  Lord  High  Steward's  Court,  he  said 
that  "the  persons  engaged  by  her  to  commit  the  murder 
had  before  their  death  confessed  the  fact,  and  died  peni- 
tent ;  and  that  he  had  besought  their  confessor  to  prove 
this,  if  need  should  require."1 

But  these  things  were  quite  according  to  the  estab- 
lished rules  of  proceeding,  and  in  no  respect  detracted 

bounding  of  the  evidence,  that  we  may  have  the  help  of  his  opinion  as  well 
as  that  of  my  Lord  Chief  Justice  ;  whose  great  travels  as  I  much  commend, 
yet  that  same  pleropharia  or  over-confidence  doth  always  subject  things  to  a 
great  deal  of  chance." — 22d  of  January,  1615-16. 

1  In  the  course  of  one  of  these  trials,  the  Chief  Justice  was  placed  in  a 
very  ridiculous  situation.  Those  who  were  plotting  against  the  life  of  Sir 
Thomas  Overbury,  had  superstitiously  consulted  one  Forman,  a  conjuror, 
respecting  their  own  fate  ;  and  this  impostor  had  kept  in  a  book  a  list  of  all 
those  who  had  come  to  him  to  have  their  fortunes  told.  "  I  well  remember," 
says  Sir  Anthony  Welden,  "  there  was  much  mirth  made  in  the  court  upon 
the  showing  this  book  ;  for  it  was  reported  the  first  leaf  my  Lord  Coke 
lighted  on  he  found  his  own  wife's  name." — Court  and  Character  of  King 
James,  p.  III. 


1616.]  EDWARD    COKE.  289 

from  the  credit  with  the  Chief  Justice  acquired  by  the 
vigor  and  ability  with  which  he  had  secured  the  convic- 
tion of  the  noble  culprits ;  and  he  was  not  suspected  of 
being  accessory  to  their  pardon, — granted  in  considera- 
tion of  their  discreet  silence  on  topics  which  the  King 
was  very  desirous  of  keeping  from  public  view.1 

Sir  Edward  Coke's  high  reputation  now  raised  a  gen- 
eral belief  that  he  would  succeed  Lord  Ellesmere  as 
Chancellor.  This  threw  Bacon  into  a  state  of  alarm, 
and  he  wrote  a  letter  to  the  King,  strongly  urging  his 
own  claims  to  the  great  seal,  and  disparaging  his  rival : — 

"  If  you  like  my  Lord  Coke,"  said  he,  "  this  will  follow, 
— first,  your  Majesty  shall  put  an  overruling  nature  into  an 
overruling  place,  which  may  breed  an  extreme  ;  next,  you 
shall  blunt  his  industries  in  matter  of  your  finances,  which 
seemeth  to  aim  at  another  place  ;'  and,  lastly,  popular 
men  are  no  sure  mounters  for  your  Majesty's  saddle."* 

The  effect  of  this  artful  representation  was  much 
heightened  by  Coke's  continued  display  of  independence ; 
for  although  he  would,  no  doubt,  have  been  well  pleased 
to  be  promoted  to  the  office  of  Chancellor,  he  would 
not  resort  to  the  compliances  and  low  arts  by  which 
Bacon  was  successfully  struggling  to  secure  the  prize. 

On  the  contrary,  from  a  sense  of  duty,  he  spontane- 
ously involved  himself  in  a  controversy  which  made  him 
very  obnoxious  to  the  Government.  A  love  of  power, 
or  of  popularity,  very  easily  deludes  a  judge  into  the 
conviction  that  he  is  acting  merely  with  a  view  to  the 
public  good  and  under  the  sanction  of  his  oath  of  office, 
when  he  is  seeking  unwarrantably  to  extend  the  juris- 
diction of  his  court.  Lord  Chancellor  Ellesmere  having 
very  properly  granted  an  injunction  against  suing  out 
execution  on  a  judgment  obtained  in  the  King's  Bench 
by  a  gross  fraud,  Lord  Chief  Justice  Coke,  asserting 
that  this  was  a  subversion  of  the  common  law  of  Eng- 
land, and  contrary  to  an  act  of  parliament,  induced  the 
party  against  whom  the  injunction  was  granted  to  pre- 
pare an  indictment  against  the  opposite  party,  his  coun- 
sel, his  solicitor,  and  the  Master  in  Chancery  who  had 

1  St.  Tr.  911-1034 ;  Amos's  Oyer  of  Poisoning. 

*  This  refers  to  the  office  of  Lord  Treasurer,  which  was  afterwards  con- 
ferred on  Chief  Justices. 
1  Bacon's  Works,  v.  371 
I — IQ 


apo  REIGN  OF    JAMES    I.  [1616. 

assisted  the  Chancellor  when  the  injunction  was  granted. 
He  then  took  infinite  pains  in  seeking  out  and  marshal- 
ing the  evidence  by  which  the  prosecution  was  to  be 
supported.  The  grand  jury,  however,  threw  out  the  in- 
dictment ;  and  the  matter  being  brought  before  the 
King,  he  decided  with  a  high  hand  in  favor  of  the  Court 
of  Chancery.1 

Bacon,  rejoicing  to  see  that  he  could  now  have  no  rival 
for  the  great  seal,  wrote  to  the  King,  with  seeming  mag- 
nanimity, "  My  opinion  is  plainly  that  my  Lord  Coke  at 
this  time  is  not  to  be  disgraced."  Nevertheless  he  in- 
veighed against  his  rival  for  "  the  affront  to  the  well- 
serving  person  of  the  Chancellor  when  thought  to  be 
dying? — which  was  barbarous." 

The  deadly  offense  at  last  given  to  the  King  was  by 
the  proceedings  in  the  "case  of  Commendams,"  *  in 
which  Coke's  conduct  was  not  only  independent  and 
energetic,  but  in  strict  conformity  to  the  law  and  consti- 
tution of  the  country,  and  every  way  most  meritorious. 
A  question  arising  as  to  the  power  of  the  King  to  grant 
ecclesiastical  preferments  to  be  held  along  with  a  bish- 
opric, a  learned  counsel,  in  arguing  at  the  bar,  denied 
this  power,  and  answered  the  reason  given  for  it — "  that 
a  bishop  should  be  enabled  to  keep  hospitality" — by  ob- 
serving that  "  no  man  is  obliged  to  keep  hospitality  be- 
yond his  means,"  and  by  a  sarcastic  comparison  between 
the  riches  of  modern  prelates  and  the  holy  apostles,  who 
maintained  themselves  by  catching  fish  and  making 
tents.  The  Bishop  of  Winchester,  who  happened  to  be 
present  at  a  trial  in  which  his  order  was  so  deeply  con- 
cerned, was  highly  incensed  by  these  liberties,  and  hur- 
rying to  the  King,  represented  to  him  that  the  Judges 
had  quietly  allowed  an  attack  to  be  made  on  an  impor- 
tant prerogative  of  the  Crown,  which  ought  to  be  held 
sacred.  Bacon,  the  Attorney  General,  being  consulted, 
he  mentioned  a  power  which,  according  to  many  prece- 
dents, the  King  possessed,  of  prohibiting  the  hearing  of 
any  cause  in  which  his  prerogative  was  concerned,  Rege 
inconsulto, — i.  e.,  until  he  should  intimate  his  pleasure 
on  the  matter  to  the  Judges  ;  and  it  was  resolved  that 

1  See  Lives  of  the  Chancellors,  vol.  ii.  ch.  1. 
1  Colt  v.  Bislu>p  of  Lichjield,  liobart,  193. 


1616.]  EDWARD    COKE. 


291 


in  this  case  such  a  prohibition  should  issue.  Accord- 
ingly Bacon,  in  the  King's  name,  wrote  a  letter  to  Sit 
E.  Coke  and  the  other  Judges,  saying — 

"  For  that  his  Majesty  holdeth  it  necessary,  touching 
his  cause  of  commendams,  upon  the  report  which  my 
Lord  of  Winchester,  who  was  present  at  the  last  argu- 
ment, made  to  his  Majesty,  that  his  Majesty  be  first 
consulted  with  ere  there  be  any  farther  argument,  there- 
fore it  is  his  Majesty's  express  pleasure  that  the  day  ap- 
pointed for  farther  argument  of  the  said  cause  be  put 
off  till  his  Majesty's  farther  pleasure  be  known  upon 
consulting  him." 

Although  the  royal  prerogative  had  been  incidentally 
brought  into  question,  the  action  was  to  decide  a  mere 
civil  right  between  the  litigating  parties ;  and  the  ille- 
gality of  this  interference  was  so  palpable,  that  Coke 
had  no  difficulty  in  inducing  his  brethren  to  disregard 
it,  and  to  proceed  in  due  course  to  hear  and  determine 
the  cause. 

Judgment  being  given,  Coke  penned,  and  he  and  all 
the  other  Judges  signed,  a  bold  though  respectful  letter 
to  their  "  most  dreaded  and  gracious  Sovereign,"  in 
which,  after  some  preliminary  statements,  they  say — 

"  We  are  and  ever  will  be,  with  all  faithful  and  true 
hearts,  according  to  our  bouden  duties,  ready  to  serve 
and  obey  your  Majesty,  and  think  ourselves  most  happy 
to  spend  our  times  and  abilities  to  do  your  Majesty  true 
and  faithful  service.  What  information  hath  been  made 
out  unto  you,  whereon  your  Attorney  doth  ground  his 
letter  from  the  report  of  the  Bishop  of  Winchester,  we 
know  not ;  this  we  know,  that  the  true  substance  of  the 
cause  summarily  is  this,  that  it  consisteth  principally 
upon  the  construction  of  two  acts  of  parliament :  the 
one,  25  Ed.  III.,  and  the  other,  25  Hen.  VIII.,  whereof 
your  Majesty's  Judges,  upon  their  oaths  and  according 
to  their  best  knowledge  and  learning,  are  bound  to  de- 
liver their  true  understanding  faithfully  and  uprightly ; 
and  the  case,  being  between  two  for  private  interest  and 
inheritance,  earnestly  called  for  justice  and  expedition. 
We  hold  it  therefore  our  duty  to  inform  your  Majesty 
that  our  oath  is  in  these  express  words,  '  that  in  case 
any  letter  come  to  us  contrary  to  law,  we  do  nothing 


*92  REIGN    OF    JAMES    I.  [1616 

therefore  but  certify  your  Majesty  thereof,  and  go  forth 
to  do  the  law  notwithstanding  the  same.' 

"  We  have  advisedly  considered,  of  the  said  letter  of 
Mr.  Attorney,  and  with  one  consent  do  hold  the  same 
to  be  contrary  to  law,  and  such  as  we  could  not  yield  to 
by  our  oaths.  And  knowing  your  Majesty's  zeal  to  do 
justice  to  be  most  renowned,  therefore  we  have,  accord- 
ing to  our  oaths  and  duties,  at  the  very  day  prefixed  the 
last  term,  proceeded  according  to  law ;  and  we  shall  ever 
pray  to  the  Almighty  for  your  Majesty  in  all  honor, 
health,  and  happiness  long  to  reign  over  us." 

The  King,  in  a  fury,  summoned  the  Judges  to  appear 
before  him  at  Whitehall,  and,  when  they  had  entered 
his  presence,  declared  that — 

"  He  approved  of  their  letter  neither  in  its  matter  nor 
manner  of  expression.  He  condemned  them  for  their 
remissness  in  suffering  counselors  at  the  bar  to  deal  in 
impertinent  discussions  about  his  prerogative,  and  told 
them  they  ought  to  have  checked  such  sallies,  nor  suf- 
fered such  insolence.  With  regard  to  their  own  busi- 
ness, he  thought  fit  to  acquaint  them  that  deferring  a 
hearing  upon  necessary  reasons  neither  denied  nor  de- 
layed justice;  it  was  rather  a  pause  of  necessary  pru- 
dence, the  Judges  being  bound  to  consult  the  King 
when  the  crown  is  concerned.  As  to  the  assertion  that 
it  was  a  point  of  private  contest  between  subject  and 
subject,  this  was  wide  of  the  truth,  for  the  Bishop  who 
was  the  defendant  pleaded  for  a  commendam  only  in 
virtue  of  the  royal  prerogative.  '  Finally,'  said  he,  '  let 
me  tell  you  that  you  have  been  in  a  hurry  where  neither 
party  required  expedition,  and  you  ought  to  have  known 
that  your  letter  is  both  couched  indecently  and  fails  in 
the  form  thereof.' " 

Upon  this,  all  the  twelve  threw  themselves  on  their 
knees  and  prayed  for  pardon.  But,  although  Coke  ex- 
pressed deep  sorrow  for  having  failed  in  form,  he  still 
manfully  contended  that — 

"  Obedience  to  his  Majesty's  command  to  stay  pro- 
ceedings would  have  been  a  delay  of  justice,  contrary  to 
law,  and  contrary  to  the  oaths  of  the  Judges;  more- 
over, as  the  matter  had  been  managed,  the  prerogative 
was  not  concerned."  King :  "  For  judges  of  the  law  to 


1616.]  EDWARD    COKE.  293 

pronounce  whether  my  prerogative  is  concerned  or  not 
is  very  preposterous  management,  and  I  require  you  my 
Lord  Chancellor  to  declare  whether  I  that  am  King,  or 
the  Judges-,  best  understand  my  prerogative,  the  law, 
and  the  oath  of  a  Judge."  Lord  Chancellor  Ellcsmere : 
"With  all  humility,  your  Majesty  will  best  be  advised 
in  this  matter  by  your  Majesty's  counsel  learned  in  the 
law  now  standing  before  you."  Bacon,  A.  G.  :  "Your 
Majesty's  view  of  the  question  none  can  truly  gainsay, 
and,  with  all  submission,  I  would  ask  the  reverend 
Judges,  who  so  avouch  their  oaths,  whether  this  refusal 
of  theirs  to  make  a  stay,  that  your  Majesty  might  be 
consulted,  was  not  nearer  to  a  breach  of  their  oaths  ? 
They  are  sworn  to  counsel  the  King ;  and  not  to  give 
him  counsel  until  the  business  is  over,  is  in  effect  not  to 
give  him  counsel  at  all  when  he  requires  it."  Coke, 
C.  J. :  "  Mr.  Attorney,  methinks  you  far  exceed  your 
authority ;  for  it  is  the  duty  of  counsel  to  plead  before 
the  Judges,  and  not  against  them."  Bacon,  A.  G.  :  "  I 
must  be  bold  to  tell,  the  Lord  Chief  Justice  of  England ', 
as  he  styles  himself,  that  we,  the  King's  counsel,  are 
obliged  by  our  oaths  and  by  our  offices  to  plead  not 
only  against  the  greatest  subjects,  but  against  any  body 
of  subjects,  be  they  courts,  judges,  or  even  the  Com- 
mons assembled  in  parliament,  who  seek  to  encroach  on 
the  prerogative  royal.  By  making  this  challenge,  the 
Judges  here  assembled  have  highly  outraged  their  char- 
acter. Will  your  Majesty  be  pleased  to  ask  the  Lord 
Coke  what  he  has  to  say  for  himself  now,  and  graciously 
to  decide  between  us?"  King:  "Mr.  Attorney  Gen- 
eral is  right,  and  I  should  like  to  know  what  further  can 
be  said  in  defense  of  such  conduct."  Coke,  C.  J. :  "  It 
would  not  become  me  further  to  argue  with  your 
Majesty."  Lord  Ellesmere,  C.  :  "  The  law  has  been  well 
laid  down  by  your  Majesty's  Attorney  General,  and  I 
hope  that  no  Judge  will  now  refuse  to  obey  your 
Majesty's  mandate  issued  under  the  like  circumstances." 
In  the  belief  that  Coke  was  humbled,  as  effectually 
well  as  the  other  Judges,  the  following  question  was  put 
to  them:  "  In  a  case  where  the  King  believes  his  pre- 
rogative or  interest  concerned,  and  requires  the  Judges 
to  attend  him  for  their  advice,  ought  they  not  to  stay 


294  REIGN    OF    JAMES    I.  [i6t6 

proceedings  till  his  Majesty  has  consulted  them  ?"  All 
the  Judges  except  Coke  :  "  Yes  !  yes  ! !  yes  !  !  !"  Coke, 
C.  J.:  "WHEN  THE  CASE  HAPPENS,  I  SHALL  DO  THAT 
WHICH  SHALL  BE  FIT  FOR  A  JUDGE  TO  DO." 

This  simple  and  sublime  answer  abashed  the  Attorney 
General,  made  the  recreant  Judges  ashamed  of  their 
servility,  and  even  commanded  the  respect  of  the  King 
himself,  who  dismissed  them  all  with  a  command  to 
keep  the  limits  of  their  several  courts,  and  not  to  suffer 
his  prerogative  to  be  wounded, — concluding  with  these 
words,  which  convey  his  notion  of  the  free  constitution 
of  England :  "  For  I  well  know  the  true  and  ancient 
common  law  to  be  the  most  favorable  to  Kings  of  any 
law  of  the  world,  to  which  law  I  do  advise  you  my 
Judges  to  apply  your  studies."1 

In  spite  of  the  offense  thus  given  to  the  King,  the 
Chief  Justice  might  have  been  allowed  long  to  retain  his 
office  if  he  would  have  sanctioned  a  job  of  Villiers,  the 
new  favorite,  who,  since  the  fall  of  the  Earl  of  Somerset, 
had  been  centralizing  all  power  and  patronage  in  his 
own  hands.  The  chief  clerkship  in  the  Court  of  King's 
Bench,  a  sinecure  then  worth  £4000  a  year,  in  the  gift 
of  the  Chief  Justice,  was  about  to  become  vacant  by  the 
resignation  of  Sir  John  Roper,  created  Lord  Teynham. 
It  had  been  promised  to  the  Earl  of  Somerset,  and  the 
object  was  to  secure  it  for  his  successor,  although  there 
was  now  a  plan  to  apply  the  profits  of  it  to  make  up  the 
very  inadequate  salaries  of  the  Judges."  Bacon  under- 
took, by  fair  or  foul  means,  to  bend  the  resolution  of 
Coke,  and,  after  a  casual  conversation  with  him,  thus 
wrote  to  Villiers,  pretending  to  have  fully  succeeded  : — 

"  As  I  was  sitting  by  my  Lord  Chief  Justice,  one  of 
the  Judges  asked  him  whether  Roper  were  dead.  He 
said  that  for  his  part  he  knew  not.  Another  of  the 
Judges  answered,  'It  should  concern  you,  my  Lord,  to 
know  it.'  Wherefore  he  turned  his  speech  to  me,  and 

1  Bacon's  Works,  ii.  517  ;  Carte,  iv.  35  ;  Lives  of  Chancellors,  ii.  249. 

*  In  the  reign  of  James  I.,  the  salary  of  the  Chief  Justice  of  the  King's 
Bench  was  only  .£224  19^.  6d.  a  year,  with  .£33  6s.  &d.  for  his  circuits  ;  and 
the  salary  of  the  puisne  judges  was  only  ,£188  6s.  8d.  a.  year.  But  this  was 
a  greaf  increase  on  >he  parsimony  of  former  times,  for  the  yearly  salary  of 
the  Chief  Justice  of  the  King's  Bench,  in  the  reign  of  Edward  1.  was  only 
170  marks. 


1616.]  EDWARD    COKE. 


295 


said,  '  No,  Mr.  Attorney,  I  will  not  wrestle  now  in  my 
latter  times.'  '  My  Lord,'  said  I,  '  you  speak  like  a  wise 
man.'  '  Well,'  said  he,  '  they  have  had  nd  luck  with  it 
that  have  had  it.'  I  said  again  '  those  days  be  passed.' 
Here  you  have  the  dialogue  to  make  you  merry  ;  but 
in  sadness  I  was  glad  to  perceive  he  meant  not  to  con- 
test." 

However,  when  the  resignation  took  place,  Coke 
denied  the  promise,  and  insisted  upon  his  right  to  dis- 
pose of  the  office  for  the  benefit  of  the  Judges.  This 
was  a  display  of  spirit  by  no  means  to  be  forgiven,  and 
the  resolution  was  immediately  formed  to  cashier  him. 

The  true  reason  for  this  outrage  could  not  be  avowed, 
and  nothing  could  be  more  creditable  to  the  integrity 
and  ability  of  Coke  than  the  wretched  inventions  which 
were  resorted  to  as  pretexts  for  disgracing  him.  Being 
summoned  before  the  Privy  Council,  he  was  first  charged 
with  breach  of  duty  when  he  was  Attorney  General  in 
concealing  a  bond  given  to  the  Crown  by  Sir  Christo- 
pher Hatton.  He  said  that  "  now  twelve  years  being 
past,  it  was  no  great  marvel  if  his  memory  was  short ;" 
but  he  showed  that  he  had  derived  no  advantage,  and 
the  Crown  had  suffered  no  damage,  from  the  alleged 
neglect.  He  was  then  charged  with  misconduct  in  his 
dispute  with  the  Lord  Chancellor  respecting  injunctions. 
He  answered,  that  if  he  was  in  error  he  might  say  "  Er- 
ravimus  cum  patribus,"  and  he  vouched  various  authori- 
ties to  prove  that  such  proceedings  in  the  Chancery  had 
been  thought  to  tend  to  the  subversion  of  the  common 
law.  Lastly,  he  was  charged  with  insulting  the  King 
when  called  before  him  in  the  case  of  commendams.  He 
admitted  that  he  was  wrong  in  denying  the  right  of  the 
King's  counsel  to  speak  on  that  occasion,  their  opinion 
being  asked  by  his  Majesty,  but  he  disclaimed  all  inten- 
tional disrespect  in  returning  the  answer  "  that  when 
the  time  should  be,  he  would  do  that  which  should 
become  an  honest  and  a  just  judge." 

He  was  then  desired  to  withdraw,  and  a  few  days  af- 
terwards he  was  re-summoned  before  the  Privy  Council, 
when,  being  made  to  kneel,  the  Lord  Treasurer,  the  Earl 
of  Suffolk,  thus  pronounced  sentence  : — 

"  Sir  Edward  Coke,  I  am  commanded  by  his  Majesty 


REIGN    OF   JAMES    7.  [1616. 

to  inform  you  that  his  Majesty  is  by  no  means  satisfied 
with  your  excuses.  Yet,  out  of  regard  to  your  former 
services,  he  is  not  disposed  to  deal  with  you  heavily,  and 
therefore  he  hath  decreed — I.  That  you  be  sequestered 
the  council  chamber  until  his  Majesty's  pleasure  be 
farther  known.  2.  That  you  forbear  to  ride  your  sum- 
mer circuit  as  justice  of  assize.  3.  That  during  the  va- 
cation, while  you  have  time  to  live  privately  and  dispose 
yourself  at  home,  you  take  into  consideration  and  re- 
view your  books  of  Reports,  wherein,  as  his  Majesty  is 
informed,  be  many  extravagant  and  exhorbitant  opinions 
set  down  and  publised  for  positive  and  good  law. 
Amongst  other  things,  the  King  is  not  well  pleased  with 
the  title  of  the  book  wherein  you  entitle  yourself  '  LORD 
CHIEF  JUSTICE  OF  ENGLAND,'  whereas  by  law  you  can 
challenge  no  more  than  LORD  CHIEF  JUSTICE  OF  THE 
KING'S  BENCH.  And  having  corrected  what  in  your 
discretion  be  found  meet  in  these  Reports,  his  Majesty's 
pleasure  is  that  you  do  bring  them  privately  before  him- 
self, so  that  he  may  consider  thereof  as  in  his  princely 
judgment  shall  be  found  expedient.  To  conclude,  I 
have  yet  another  cause  of  complaint  against  you.  His 
Majesty  has  been  credibly  informed  that  you  have 
suffered  your  coachman  to  ride  bareheaded  before  you, 
and  his  Majesty  desires  that  this  may  be  foreborne  in 
future." 

Coke,  C.  y.  .•  "  I  humbly  submit  myself  to  his  Ma- 
jesty's pleasure ;  but  this  I  beg  your  Lordships  to  take 
notice  of,  and  to  state  to  his  Majesty  from  me,  with  all 
humility,  that  if  my  coachman  hath  rode  before  me 
bareheaded,  he  did  it  at  his  own  ease,  and  not  by  my 
order." 

The  only  delinquency  which  could  be  pressed  against 
him  was  having  fallen  into  some  mistakes  in  his  printed 
books  of  Reports ;  and  to  make  these  the  foundation  of 
a  criminal  proceeding  for  the  purpose  of  removing  him 
from  the  bench,  must,  even  in  that  age,  have  shocked  all 
mankind.  Such  was  his  gigantic  energy,  that  while  he 
was  Attorney  General  he  had  composed  and  published 
five  volumes  of  Reports  of  Cases  determined  while  he 
was  at  the  bar ;  and  afterwards,  when  he  was  Chief  Jus- 
tice of  Common  Pleas,  and  of  the  King's  Bench,  six 


i6i6.j  EDWARD     COKE.  297 

more,  of  cases  determined  by  himself  and  his  brother 
Judges.1  They  were  executed  with  great  accuracy  and 
ability,  though  tinctured  with  quaintness  and  pedantry  ; 
and  Bacon,  who  was  now  disgracefully  taking  the  most 
active  part  against  their  author,  had  deliberately  written, 
— "To  give  every  man  his  due,  Sir  Edward  Coke's 
Reports,  though  they  may  have  errors,  and  some  per- 
emptory and  extrajudicial  resolutions,  more  than  are 
wanted,  yet  they  contain  infinite  good  decisions  and 
rulings." 

The  Chief  Justice,  instead  of  going  the  circuit,  was 
condemned  to  employ  himself  in  revising  these  Reports; 
and  when  Michaelmas  Term  came  round  he  was  again 
cited  before  his  accusers.  Of  this  meeting  we  have  an 
account  of  a  letter  from  Bacon  to  the  King ;  — 

"  This  morning,  according  to  your  Majesty's  com- 
mands, we  have  had  my  Lord  Chief  Justice  of  the  Com- 
mon Pleas  before  us.  It  was  delivered  unto  him  that 
your  Majesty's  pleasure  was,  that  we  should  receive  an 
account  from  him  of  the  performance  of  a  command- 
ment of  your  Majesty  laid  upon  him,  which  was  that 
he  should  enter  into  a  view  and  retraction  of  such  novel- 
ties and  errors,  and  offensive  conceits,  as  were  dispersed 
in  his  Reports  ;  that  he  had  had  good  time  to  do  it ;  and  we 
doubted  not  but  he  had  used  good  endeavor  in  it,  which 
we  desired  now  in  particular  to  receive  from  him.  His 
speech  was,  that  there  were  of  his  Reports  eleven  books, 
that  contained  above  500  cases ;  that  heretofore  in  other 
Reports  much  reverenced  there  had  been  found  errors 
whic;h  the  wisdom  of  time  had  discovered  ;  and  there- 
upon delivered  to  us  the  inclosed  paper,  wherein  your 
Majesty  may  perceive  that  my  Lord  is  an  happy  man 
that  there  should  be  no  more  errors  in  his  500  cases  than 
in  a  few  cases  of  Plowden.  .  .  . 

"  The  Lord  Chancellor,  in  the  conclusion,  signified  to 
my  Lord  Coke  your  Majesty's  commandment,  that,  until 
report  be  made  and  your  pleasure  therefore  known,  he 
shall  forbear  sitting  in  Westminster,  &c.  ;  not  restrain- 
ing, nevertheless,  any  other  exercise  of  his  place  of 
Chief  Justice  in  private." 

1  He  calls  them  "  Parts."  Out  of  respect,  they  are  cited  as  "  1st  Report,' 
•  ad  Report,"  &c.,  without  any  other  designation. 


298  REIGN    OF    JAMES    I.  [1616 

The  specific  exceptions  to  the  Reports,  with  his  an- 
swers, are  still  extant,  to  prove  the  utter  frivolity  of  the 
proceeding.  The  only  thing  that  could  be  laid  hold  of, 
with  any  semblance  of  reason,  was  a  foolish  doctrine  al- 
leged to  have  been  laid  down  extra-judicially  in  "  Dr. 
Bonhams  Case"  *  which  I  have  often  heard  quoted  in 
parliament  against  the  binding  obligation  of  obnoxious 
statutes,  "  that  the  common  law  shall  control  acts  of  par- 
liament, and  sometimes  shall  adjudge  them  to  be  merely 
void  ;  for  where  an  act  of  parliament  is  against  common 
right  and  reason,  the  common  law  shall  control  it,  and 
adjudge  it  to  be  void."  He  attempted  to  justify  this  on 
former  authorities  :  "  In  8  Ed.  III.,  Thomas  Tregor's 
case,  Herle  saith,  '  Some  statutes  are  made  against  law 
and  right,  which  they  that  made  them,  perceiving,  would 
not  put  them  in  execution.'  '  He  concluded  with 
Stroud's  case,  16  &  17  Eliz.,  adjudging  "  that  if  an  act  of 
parliament  give  to  any  to  have  cognizance  of  all  manner  of 
pleas  within  his  manor  of  D.,  he  shall  hold  no  plea  where- 
unto  himself  is  a  party  for  iniquum  est  aliquem  suce  rei 
esse  judicem"  But  this  rests  on  an  implied  exception  ; 
and  his  other  authorities  resolve  themselves  into  a  ques- 
tion of  construction,  without  countenancing  the  preten- 
sion that  judges  may  repeal  an  act  of  parliament,  or  that 
the  people  have  to  obey  only  the  laws  which  they  ap- 
prove.* This  conundrum  of  Coke  ought  to  have  been 
laughed  at,  and  not  made  the  pretence  for  disgracing  and 
ruining  him. 

A  few  days  after,  Bacon,  in  another  letter  to  the  King, 
says, — 

"  Now  your  Majesty  seeth  what  he  hath  done,  you  can 
better  judge  of  it  than  we  can.  If  upon  this  probation, 
added  to  former  matters,  your  Majesty  think  him  fit  for 
your  service,  we  must,  in  all  humbleness,  subscribe  to 
your  Majesty,  and  acknowledge  that  neither  his  dis- 
placing, considering  he  holdeth  his  place  but  during  your 
will  and  pleasure,  nor  the  choice  of  a  fit  man  to  be  put  in 
his  room,  are  council-table  matters,  but  are  to  proceed 
wholly  from  your  Majesty's  great  wisdom  and  gracious 
pleasure.  So  that  in  this  course  it  is  but  the  signification 
of  your  pleasure,  and  the  business  is  at  an  end  as  to  him." 
6  Rep.  f.  u8a.  •  Bacon's  Works,  vi.  405. 


1616.]  EDWARD     COKE.  299 

Bacon  next  prepared  a  declaration  which  the  King 
was  to  make  to  the  Privy  Council,  touching  the  Lord 
Coke,  "  that  upon  the  three  grounds  of  deceit,  contempt 
and  slander  of  his  government,  his  Majesty  might  very 
justly  have  proceeded  not  only  to  have  put  him  from  his 
place  of  Chief  Justice,  but  to  have  brought  him  in  ques- 
tion in  the  Star  Chamber,  which  would  have  been  his 
utter  overthrow  ;  but  his  Majesty  was  pleased  for  that 
time  only  to  put  him  off  from  the  council  table,  and 
from  the  public  exercise  of  his  place  of  Chief  Justice,  and 
to  take  farther  time  to  deliberate."  Then  followed  a 
statement  of  his  turbulent  carriage  to  the  King's  prerog- 
ative, and  the  settled  jurisdiction  of  the  High  Commis- 
sion, the  Star  Chamber,  and  the  Chancery,  with  the  cut- 
ting observation, — "  that  he  having  in  his  nature  not  one 
part  of  those  things  which  are  popular  in  men,  being 
neither  civil,  nor  affable,  nor  magnificent,  he  hath  made 
himself  popular  by  design  only,  in  pulling  down  the  gov- 
ernment." Lastly  came  the  objectionable  doctrines  to 
be  found  in  the  Reports,  "  which,  after  three  month's 
time,  he  had  entirely  failed  to  explain  or  justify."  * 

It  is  doubtful  whether  this  DECLARATION  was  ever 
publicly  pronounced  by  the  King,  but  his  Majesty  was 
now  fully  persuaded  to  proceed  to  the  last  extremity 
against  the  offending  Judge  ;  and  lest  he  should  relent, 
Bacon  wrote  him  the  following  letter: — 

"  May  it  please  your  excellent  Majesty, 

"  I  send  your  Majesty  a  form  of  discharge  for  my 
Lord  Coke  from  his  place  of  Chief  Justice  of  your  Bench. 

"  I  send  also  a  warrant  to  the  Lord  Chancellor  for  mak- 
ing forth  a  writ  for  a  new  Chief  Justice,  leaving  a  blank 
for  the  name  to  be  supplied  in  your  Majesty's  presence  ; 
for  I  never  received  your  Majesty's  express  pleasure 
in  it. 

"  If  your  Majesty  resolve  of  Montagu,  as  I  conceive 
and  wish,  it  is  very  material,  as  these  times  are,  that  your 
Majesty  have  some  care  that  the  Recorder  succeeding  be 
a  temperate  and  discreet  man,  and  assured  to  your  Ma- 
jesty's service. 

"  God  preserve  your  Majesty."  ' 

These  proceedings  seem  to  have  excited  considerable 

1  Bacon's  Works,  v.  127.  '  Ibid  131. 


300  REIGN    OF    JAMES    I.  [1616 

interest  and  sympathy  in  the  public  mind.  Mr.  Cham- 
berlain wrote  to  Sir  Dudley  Carlton, — 

"  Lord  Coke  hath  been  called  twice  or  thrice  this  term 
before  the  Chancellor  and  the  King's  learned  council,  to 
give  reason  for  divers  things  delivered  in  his  Reports.  It 
is  not  the  least  of  his  humiliations  to  be  convented  in 
this  point  before  such  judges  as  Sergeant  Crew,  Sergeant 
Montague,  and  Sergeant  Finch,  the  Attorney-General, 
and  the  Solicitor,  whereof  the  greater  part,  except  the 
Solicitor,1  are  held  no  great  men  in  law ;  and  withal,  to 
find  such  coarse  usage  as  not  once  to  be  offered  to  sit 
down,  and  so  unrespective  and  uncivil  carriage  from  the 
Lord  Chancellor's  men,  that  not  one  of  them  did  move  a 
hat  or  make  any  sign  of  regard  to  him ;  whereof  the 
Queen  taking  notice,  his  Majesty  has  since  sent  word 
that  he  would  have  him  well  used."8  A  few  days  after, 
the  same  correspondent  writes, — "The  Lord  Coke  hangs 
still  in  suspense,  yet  the  Queen  is  said  to  stand  firm  for 
him,  and  to  have  been  very  earnest  in  his  behalf,  as  like- 
wise the  Princes."  But  on  the  I4th  of  November  he 
adds,  "  The  Lord  Coke  is  now  quite  off  the  hooks,  and 
order  given  to  send  him  a  supersedeas  from  executing  his 
place.  The  common  speech  is  that  four  P's  have  over- 
thrown and  put  him  down ;  that  is,  PRIDE,  PROHIBI- 
TIONS, PR.fcMUNIRE,  and  PREROGATIVE."3 

On  the  i6th  of  Nov.  the  supersedeas  actually  received 
the  royal  signature,  and  passed  the  great  seal,  being  in 
these  words, — 

"  For  certain  causes  now  moving  us,  we  will  that  you 
shall  be  no  longer  our  Chief  Justice  to  hold  pleas  before 
us,  and  we  command  you  that  you  no  longer  interfere 
in  that  office,  and  by  virtue  of  this  presence  we  at  once 
remove  and  exonerate  you  from  the  same." 

I  wish  much  that  Coke  had  completed  his  triumph, 
\fy  receiving  the  intelligence  with  indifference,  or  at  least 
with  composure.  But  there  is  extant  a  letter  from  Mr. 
John  Castle,  written  three  days  after,  containing  this 
striking  passage : 

.  "  A  thunderbolt  has  fallen  upon  our  Lord  Coke  in  the 
King's  Bench,  which  has  overthrown  him  from  the  roots. 
The  supersedeas  was  carried  to  him  by  Sir  George  Cop- 

1  Yelvertoo.    *  Nichol's  Progresses  of  James,  voL  iii.  p.  194.     *  Ib.  p.  226. 


i6i6.]  EDWARD     COKE.  3ci 

pin,  who,  at  the  presenting  of  it,  saw  that  magnanimity 
and  supposed  greatness  of  spirit  to  fall  into  a  very  nar- 
row room,  for  he  received  it  with  dejection  and  tears. 
Tremor  et  successio  non  cadunt  in  fortem  et  constantcm 
vtrum."  1 

This  momentary  weakness  ought  to  be  forgiven  him, 
for  he  behaved  with  unflinching  courage  while  the 
charges  were  pending  against  him  ;  and  he  knew  well 
that,  by  yielding  the  Chief  Clerkship  to  Buckingham,  he 
might  easily  have  escaped  further  molestation,  but  "  he 
stood  upon  a  rule  made  by  his  own  wisdom, — that  a 
judge  must  not  pay  a  bribe  nor  take  a  bribe." a  We 
ought  likewise  to  recollect,  that  although  at  first  he  was 
stunned  by  the  blow,  he  soon  rallied  from  it,  in  spite  of 
sore  domestic  annoyances ;  and  that  he  afterwards  not 
only  took  ample  revenge  on  his  enemies,  but  conferred 
lasting  benefits  on  his  country. 

The  week  after  Coke's  dismissal,  Chamberlain  wrote 
to  a  friend, — 

"  If  Sir  Edward  Coke  could  bear  his  misfortunes  con- 
stantly it  were  no  disgrace  to  him,  for  he  goes  away  with 
a  general  applause  and  good  opinion.  And  the  King 
himself  when  he  told  his  resolution  at  the  council  table 
to  remove  him,  yet  gave  this  character,  that  he  thought 
him  no  ways  corrupt,  but  a  good  Justice — with  so  many 
other  good  words,  as  if  he  meant  to  hang  him  with  a 
silken  halter.  Hitherto  he  bears  himself  well,  but  es- 
pecially towards  his  lady,  without  any  complaint  of  her 
demeanor  towards  him ;  though  her  own  friends  are 
grieved  at  it',  and  her  father  sent  to  him  to  know  all  the 
truth,  and  to  show  him  how  much  he  disallowed  her 
courses,  having  divided  herself  from  him,  and  disfur- 
nished  his  house  in  Holborn  and  at  Stoke  of  whatsoever 
was  in  them,  and  carried  all  the  moveables  and  plate  she 
could  come  by,  God  knows  where,  and  retiring  herself 
into  obscure  places  both  in  town  and  country.  He  gave 
a  good  answer  likewise  to  the  new  Chief  Justice,  who 
sending  to  him  to  buy  his  collar  of  S.  S.,  he  said,  '  he 
would  not  part  with  it,  but  leave  it  to  his  posterity,  that 
they  might  one  day  know  that  they  had  a  Chief  Justice 

1  See  D'Israeli's  Character  of  James  I.,  p.  125. 
*  Hackett's  Life  of  Lord  Keeper  Williams,  ii.  I2O. 


302  REIGN    OF    JAMES    /.  [1616 

to  their  ancestor.'  He  is  now  retired  to  his  daughter 
Sadler's,  in  Hertfordshire,  and  from  thence  it  is  thought 
into  Norfolk.  He  hath  dealt  bountifully  with  his  ser- 
vants ;  and  such  as  had  places  under  him,  he  has  willed 
them  to  set  down  truly  what  they  gained,  and  he  will 
make  it  good  to  them,  if  they  be  willing  to  tarry  and 
continue  about  him."  l 

The  public  were  at  no  loss  to  discern  the  true  cause 
of  this  dismissal  when  they  knew  that  his  successor,  be- 
fore being  appointed,  was  compelled  to  sign  an  agree- 
ment binding  himself  to  dispose  of  the  Chief  Clerkship 
for  the  benefit  of  Buckingham,  and  when  they  saw  two 
trustees  for  Buckingham  admitted  to  the  place  as  soon 
as  the  new  Chief  Justice  was  sworn  in.  Bacon  now 
made  a  boast  to  the  favorite  of  his  good  management : 

"  I  did  cast  myself,  "  says  he  in  a  letter  to  Bucking- 
ham, "  that  if  your  Lordship's  deputies  had  come  in  by 
Sir  E.  Coke,  who  was  tied  (that  is,  under  an  agreement 
with  Somerset),  it  would  have  been  subject  to  some 
clamor  from  Somerset,  and  some  question  what  was  for- 
feited— by  Somerset's  attainder  being  but  a  felony — to 
the  King ;  but  now,  they  coming  in  from  a  new  Chief 
Justice,  all  is  without  question  or  scruple." 

1  Nichol's  Progresses  of  James,  vol.  iii.  228. 


CHAPTER  IX. 

CONTINUATION    OF    THE    LIFE    OF    SIR    EDWARD    COKE 
TILL  HE  WAS  SENT  PRISONER  TO  THE  TOWER. 

COKE  was  supposed  by  mankind  and  by  himself 
to   be  disgraced  and    ruined.      Nevertheless   his 
story  is  more  interesting,  and  he  added  more  to 
his  own  fame,  as  well  as  conferred  greater  benefits  on 
his  country,  than  if  he   had  quietly  continued   to  go 
through  the  routine  of  his  judicial  duties  till  his  facul- 
ties decayed. 

Bacon's  vengeance  was  not  yet  by  any  means  satiated. 
Having  artfully  brought  about  the  fall  of  his  rival,  he 
wrote  him  a  most  insulting  letter  by  way  of  consolation 
and  advice;1  he  still  persecuted  him  on  the  absurd 
charge  of  attacking  the  royal  prerogative  in  his  Re- 
ports;  he  appointed  a  commission  of  the  Judges  to  re- 
vise them  ;2  and  he  meditated  an  information  against 
him  in  the  Star  Chamber  for  malversation  in  office,  in 
the  hope  of  a  heavy  fine  being  imposed  upon  him. 
These  spiteful  designs  seemed  now  easily  within  his 
power,  for  he  had  reached  the  summit  of  his  ambition ; 
the  great  seal  was  his  own,  and  he  expected  the  King 
and  Buckingham  to  continue  submissive  to  his  will. 

But  Coke's  energy  and  integrity  triumphed.  At  the 
age  of  sixty-six,  from  exercise  and  temperance  his  health 
was  unimpaired,  and  his  mental  faculties  seemed  to  be- 
come more  elastic.  With  malicious  pleasure  he  discov- 
ered that  the  new  Chancellor  was  giddy  by  his  elevation ; 
and  he  sanguinely  hoped  that,  from  his  reckless  and 
unprincipled  proceedings,  before  long  an  opportunity 

1  Bacon's  Works,  v.  403  ;  Lives  of  the  Chancellors,  ii.  358 
•  Bacon's  Works,  vL  409. 


$04  REIGN    OF    JAMES    I.  [1617 

would  occur  of  precipitating  him  from  his  pride  of  place 
into  the  depth  of  humiliation. 

The  ex-Chief  Justice,  a  few  weeks  after  his  dismissal, 
contrived  to  have  an  interview  with  the  King,  and  was 
rather  graciously  received  by  him  ;  but  he  knew  that  he 
had  no  chance  of  being  restored  to  power  except  by  the 
favor  of  Buckingham,  whom  he  had  so  deeply  offended. 

With  great  dexterity  he  laid  a  plan,  which  had  very 
nearly  succeeded,  before  Lord  Chancellor  Bacon  was 
warm  in  the  marble  chair. 

Lady  Hatton,  although  she  hated  her  aged  husband, 
and  was  constantly  keeping  him  in  hot  water,  occasion- 
ally lived  with  him,  and  had  brought  him  a  daughter, 
called  "  The  Lady  Frances,"  only  fourteen  years  old, 
who  was  a  very  rich  heiress,  as  her  mother's  possessions 
were  entailed  upon  her,  and  she  expected  a  share  of 
the  immense  wealth  of  her  father.  This  little  girl 
was  pretty  to  boot  ;  and  she  had  attracted  the  notice  of 
Buckingham's  elder  brother,  Sir  John  Villiers,  who  was 
nearly  thrice  her  age,  and  was  exceedingly  poor.  Sir  Ed- 
ward Coke,  while  Chief  Justice,  had  scorned  the  idea  of 
such  a  match  ;  but  it  was  now  suggested  to  him  by 
Secretary  Winwood  as  the  certain  and  the  only  means 
of  restoring  him  to  favor  at  Court. 

Soon  after  Bacon's  elevation,  the  King  went  to  Scot- 
land, attended  by  Buckingham,  to  pay  a  long-promised 
visit  to  his  countrymen  ;  and  the  Chancellor  being  left 
behind  as  representative  of  the  executive  government, 
played  "  fantastic  tricks  "  which  were  not  expected  from 
a  philosopher  in  the  enjoyment  of  supreme  power. 
Winwood,  the  Secretary  of  State,  his  colleague,  he 
treated  with  as  little  ceremony  as  he  might  have  done  a 
junior  clerk  or  messenger  belonging  to  the  Council 
Office.  There  is  no  such  strong  bond  of  union  as  a 
common  hatred  of  a  third  person,  and  the  insulted 
statesman  suggested  to  the  ex-Chief  Justice  that  the 
favorite  might  easily  be  regained  by  matching  the  heir- 
ess with  his  brother. 

This  is  the  least  reputable  passage  in  the  whole  life  of 
Sir  Edward  Coke.  He  thought  of  nothing  but  of  re- 
covering himself  from  disgrace,  and  humbling  an  enemy: 
therefore  he  jumped  at  the  proposal,  and,  without  con- 


1617.]  EDWARD    COKE.  305 

suiting  Lady  Hatton,  or  thinking  for  a  moment  of  the 
inclinations  of  the  young  lady,  he  went  to  Sir  John  Vil- 
liers  and  offered  him  his  daughter,  with  all  her  fortune 
and  expectations,  expressing  high  satisfaction  at  the 
thought  of  an  alliance  with  so  distinguished  a  family. 
Sir  John,  as  may  be  supposed,  professed  a  never-dying 
attachment  to  the  Lady  Frances,  and  said  that,  "  al- 
though he  would  have  been  well  pleased  to  have  taken 
her  in  her  smock,  he  should  be  glad,  by  way  of  curiosity, 
to  know  how  much  could  be  assured  by  marriage  settle- 
ment upon  her  and  her  issue  ?"  Sir  Edward,  with  some 
reluctance,  came  to  particulars,  which  were  declared  to  be 
satisfactory,  and  the  match  was  considered  as  made. 

But  when  the  matter  was  broken  to  Lady  Hatton  she 
was  in  a  frantic  rage ;  not  so  much  because  she  disap- 
proved of  Sir  John  Villiers  for  her  son-in-law,  as  that 
such  an  important  arrangement  had  been  made  in  the 
family  without  her  opinion  being  previously  asked  upon 
it.  She  reproached  Sir  Edward  the  more  bitterly  on 
account  of  his  ingratitude  for  her  recent  services  ;  as, 
notwithstanding  occasional  forwardness,  she  had  been 
kind  to  him  in  his  troubles.1  When  the  first  burst  of 
her  resentment  had  passed  over  she  appeared  more  calm, 
but  this  was  from  having  secretly  formed  a  resolution  to 
carry  off  her  daughter  and  to  marry  her  to  another. 
The  same  night,  Sir  Edward  still  keeping  up  his  habit 
of  going  to  bed  at  nine  o'clock, — soon  after  ten  she 
sallied  forthwith  the  Lady  Frances  from  Hatton  House, 
Holborn.  They  entered  a  coach  which  was  waiting  for 
them  at  a  little  distance,  and,  traveling  by  unfrequented 
and  circuitous  roads,  next  morning  they  arrived  at  a 
house  of  the  Earl  of  Argyle  at  Oatlands,  then  rented  by 
Sir  Edmund  Withipole,  their  cousin.  There  they  were 
shut  up,  in  the  hope  that  there  could  be  no  trace  of 
the  place  of  their  concealment. 

1  Chamberlain,  in  a  letter  dated  22d  of  June,  1616,  says,  "  The  Lady 
Hatton  stood  by  him  in  great  stead,  both  in  soliciting  at  the  council  table, 
wherein  she  hath  done  herself  great  honor,  but  especially  in  refusing  to 
sever  her  cause  from  his,  as  she  was  moved  to  do,  btrt  resolving  and  pub- 
lishing that  she  would  run  the  same  fortune  with  him."  She  had  even 
quarrelled  with  both  their  Majesties  for  his  sake.  On  the  6th  of  July, 
Chamberlain  writes,  "  His  lady  hath  likewise  carried  herself  very  indis- 
creetly, of  late,  towards  the  Queen,  whereby  she  hath  lost  her  favor  and  U 
forbidden  the  court — as  also  the  King's." 
I — 20. 


306  REIGN    OF    JAMES    I.  [1617, 

While  they  lay  hid,  Lady  Hatton  not  only  did  every 
thing  possible  to  prejudice  her  daughter  against  Sir 
John  Villiers,  but  offered  her  in  marriage  to  the  young 
Earl  of  Oxford,  and  actually  showed  her  a  forged  letter, 
purporting  to  come  from  that  nobleman,  which  assever- 
ated that  he  was  deeply  attached  to  her,  and  that  he 
aspired  to  her  hand. 

Meanwhile  Sir  Edward  Coke,  having  ascertained  the 
retreat  of  the  fugitives,  applied  to  the  Privy  Council  for 
a  warrant  to  search  for  his  daughter  ;  and,  as  there  was 
some  difficulty  in  obtaining  it,  he  resolved  to  take  the 
law  into  his  own  hand.  Accordingly  the  ex-Chief  Jus- 
tice of  England  mustered  a  band  of  armed  men,  con- 
sisting of  his  sons,  his  dependents,  and  his  servants  ;  and, 
himself  putting  on  a  breast-plate,  with  a  sword  by  his 
side,  and  pistols  at  his  saddle  bow,  he  marched  at  their 
head  upon  Oatlands.  When  they  arrived  there  they 
found  the  gate  leading  to  the  house  bolted  and  bar- 
ricaded. This  they  forced  open  without  difficulty  ;  but 
the  outer  door  of  the  house  was  so  secured  as  long  to 
defy  all  their  efforts  to  gain  admission.  The  ex-Chief 
Justice  repeatedly  demanded  his  child  in  the  King's 
name,  and  laid  down  for  law,  that  "  if  death  should  en- 
sue, it  would  be  justifiable  homicide  in  him,  but  murder 
in  those  who  opposed  him."  One  of  the  party,  gaining 
entrance  by  a  window,  let  in  all  the  rest  ;  but  still 
there  were  several  other  doors  to  be  broken  open.  At 
last  Sir  Edward  found  the  object  of  his  pursuit  secreted 
in  a  small  closet,  and,  without  stopping  to  parley,  lest 
there  should  be  a  rescue,  he  seized  his  daughter,  tore  her 
from  her  mother,  and,  placing  her  behind  her  brother, 
rode  off  with  her  to  his  house  at  Stoke  Pogis  in  Buck- 
inghamshire. There  he  secured  her  in  an  upper  cham- 
ber, of  which  he  himself  kept  the  key.  He  then  wrote 
the  following  letter  to  Buckingham  : — 

'  Right  Honorable, 

"  After  my  wife,  Sir  Edmund  Withipole  and  the  lady 
his  wife,  and  their  confederates,  to  prevent  this  match 
between  Sir  John  Villiers  and  my  daughter  Frances,  had 
conveyed  away  my  dearest  daughter  out  of  my  house, 
and  in  most  secret  manner  to  a  house  near  Oatland, 
which  Sir  Edmund  Withipole  had  taken  for  the  summer 


1617.]  EDWARD    COKE.  307 

of  my  Lord  Argyle,  I,  by  God's  wonderful  providence 
finding  where  she  was,  together  with  my  sons  and 
ordinary  attendants,  did  break  open  two  doors,  and  re- 
covered my  daughter,  which  I  did  for  these  causes : — 
First,  and  principally,  lest  his  Majesty  should  think  I 
was  of  confederacy  with  my  wife  in  conveying  her  away, 
or  charge  me  with  want  of  government  in  my  household 
in  suffering  her  to  be  carried  away  after  I  had  engaged 
myself  to  his  Majesty  for  the  furtherance  of  this  match. 
2,  For  that  I  demanded  my  child  of  Sir  Edmund  and 
his  wife,  and  they  denied  to  deliver  her  to  me.  And 
yet  for  this  warrant  is  given  to  sue  me  in  his  Majesty's 
name  in  the  Star  Chamber  with  all  expedition,  which 
though  I  fear  not  well  to  defend,  yet  it  will  be  a  great 
vexation.  But  I  have  full  cause  to  bring  all  the  con- 
federates into  the  Star  Chamber,  for  conveying  away  my 
child  out  of  my  house." 

He  subjoins  an  enumeration  of  the  vast  estates  to  be 
settled  upon  his  daughter  if  she  were  to  be  married  to 
Sir  John. 

But  the  Lord  Chancellor  was  still  determined  that  the 
match  should  be  broken  off.  He  strongly  encouraged 
Lady  Hatton  in  her  resistance  to  it  ;  and  he  wrote 
letters  to  Scotland  strenuously  dissuading  it.  Thus  he 
addressed  Buckingham  : — 

"  It  seemeth  that  Secretary  Winwood  hath  officiously 
busied  himself  to  make  a  match  between  your  brother 
and  Sir  Edward  Coke's  daughter,  and,  as  we  hear,  he 
does  it  more  to  make  a  faction  than  out  of  any  great 
affection  for  your  Lordship.  Jt  is  true  he  hath  the  con- 
sent of  Sir  Edward  Coke,  as  we  hear,  upon  reasonable 
conditions  for  your  brother,  and  yet  no  better  than, 
without  question,  may  be  found  in  some  other  matches. 
But  the  mother's  consent  is  not  had,  nor  the  young 
gentlewoman's,  who  expects  a  great  fortune  from  her 
mother,  which,  without  her  consent,  is  endangered. 
This  match,  out  of  my  faith  and  freedom  towards  your 
Lordship,  I  hold  very  inconvenient  both  for  yonr 
brother  and  yourself.  First,  he  shall  marry  into  a  dis- 
graced house,  which  in  reason  of  state  is  never  held 
good.  Next,  he  shall  marry  into  a  troubled  house  of 
man  and  wife,  which  in  religion  and  Christian  discretion 


308  REIGN    OF    JAMES    I.  [1617. 

is  disliked.  Thirdly,  your  Lordship  will  go  near  to  lose 
all  such  your  friends  as  are  adverse  to  Sir  Edward  Coke, 
myself  only  excepted,  who,  out  of  a  pure  love  and  thank- 
fulness, shall  ever  be  firm  to  you.  And  lastly,  believe  it 
will  greatly  distract  the  King's  service.  .  .  .  There- 
fore my  advice  is,  that  the  marriage  be  not  pressed  or 
proceeded  in  without  the  consent  of  both  parents,  and 
so  break  it  altogether." 

He  tried  to  alarm  the  King  by  the  notion  that  the 
general  disposition  then  evinced  to  submit  to  his  Maj- 
esty's prerogative  would  be  disturbed  by  any  show  of 
favor  to  the  ex-Chief  Justice  : — 

"All  mutinous  spirits  grow  to  be  a  little  poor,  and  to 
draw  in  their  horns  ;  and  not  less  from  your  Majesty's 
disauthorizing  the  man  I  speak  of.  Now,  then,  I 
reasonably  doubt  that,  if  there  be  but  an  opinion  of  his 
coming  in  with  the  strength  of  such  an  alliance,  it  will 
give  a  turn  and  relapse  in  men's  minds,  into  the  former 
state  of  things,  hardly  to  be  holpen,  to  the  great  weak- 
ening of  your  Majesty's  service." 

A  communication  with  Edinburgh,  which  can  now  be 
made  in  a  few  minutes,  then  required  many  days  ;  and 
before  Bacon  had  received  an  answer  to  these  letters  he 
had  instructed  Yelverton,  the  Attorney  General,  to 
commence  a  prosecution  in  the  Star  Chamber  against 
Sir  Edward  Coke,  for  the  riot  at  Oatlands,  which  was 
represented  as  amounting  almost  to  a  levying  of  war 
against  the  King  in  his  realm. 

On  the  other  hand,  Lady  Hatton  made  another  at- 
tempt forcibly  to  get  possession  of  her  daughter.  There- 
upon proceedings  were  instituted  against  her  by  Sir 
Edward  Coke,  and  he  actually  had  her  put  under  re- 
straint upon  the  following  charges  : — 

"  i.  For  conveying  away  her  daughter  clam  et  secret^ 
2.  For  endeavoring  to  bind  her  to  my  Lord  Oxford 
witho-t  her  father's  consent.  3.  For  counterfeiting  a 
letter  of  my  Lord  of  Oxford  offering  her  marriage.  4. 
For  plotting  to  surprise  her  daughter  and  take  her  away 
by  force,  to  the  breach  of  the  King's  peace,  and  for  that 
purpose  assembling  a  body  of  desperate  fellows,  whereof 
the  consequences  might  have  been  dangerous."  She 
answered — "  I.  I  had  cause  to  provide  for  her  quiet, 


1617.]  EDWARD     COKE.  309 

Secretary  Winwood  threatening  she  should  be  married 
from  me  in  spite  of  my  teeth,  and  Sir  Edward  Coke  in- 
tending to  bestow  her  against  her  liking;  whereupon, 
she  asking  me  for  help,  I  placed  her  at  my  cousin-ger- 
man's  house  a  few  days  for  her  health  and  quiet.  2.  My 
daughter  tempted  by  her  father's  threats  and  ill-usage, 
and.  pressing  me  to  find  a  remedy,  I  did  compassionate 
her  condition,  and  bethought  myself  of  this  contract 
with  my  Lord  of  Oxford,  if  so  she  liked,  and  therefore  I 
gave  it  her  to  peruse  and  consider  by  herself;  she  liked 
it,  cheerfully  writ  it  out  with  her  own  hand,  subscribed 
it,  and  returned  it  to  me.  3.  The  end  justifies — at  least 
excuses — the  fact ;  for  it  was  only  to  hold  up  my  daugh- 
ter's mind  to  her  own  choice,  that  she  might  with  the 
more  constancy  endure  her  imprisonment — having  this 
only  antidote  to  resist  the  poison — no  person  or  speech 
being  admitted  to  her  but  such  as  spoke  Sir  John  Vil- 
lar's  language.  4.  Be  it  that  I  had  some  tall  fellows 
assembled  to  such  an  end,  and  that  something  was  in- 
tended, who  intended  this  ? — the  mother  !  And  where- 
fore? Because  she  was  unnaturally  and  barbarously 
secluded  from  her  daughter,  and  her  daughter  forced 
against  her  will,  contrary  to  her  vows  and  liking,  to  the 
will  of  him  she  disliked." 

She  then  goes  on  to  describe,  by  way  of  recrimination, 
"  Sir  Edward  Coke's  most  notorious  riot,  committed  at 
my  Lord  of  Argyle's  house,  where,  without  constable  or 
warrant,  well  weaponed,  he  took  down  the  doors  of  the 
gate-house  and  of  the  house  itself,  and  tore  the  daugh- 
ter in  that  barbarous  manner  from  her  mother — justi- 
fying it  for  good  law ;  a  word  for  the  encouragement  of 
all  notorious  and  rebellious  malefactors  from  him  who 
had  been  a  Chief  Justice,  and  reputed  the  oracle  of  the 
law." 

Now  Bacon  discovered  the  fatal  mistake  he  had  com- 
mitted in  opposing  the  match,  and  trembled  lest  the  great 
seal  should  at  once  be  transferred  from  him  to  Sir  Ed- 
ward Coke.  Buckingham  wrote  to  him  : — 

"  In  this  business  of  my  brother's,  that  you  over- 
trouble  yourself  with,  I  understand  from  London,  by 
some  of  my  friends,  that  you  have  carried  yourself  with 
much  scorn  and  neglect  both  towards  mys  If  and  my 


310  REIGN    OF    JAMES    I.  [1617. 

friends,  which,  if  it  proves   true,  I   blame  not  you  but 
myself." 

And  the  King's  language  to  him  was  still  more  alarm- 
ing:— 

•'  Whereas  you  talk  of  the  riot  and  violence  committed 
by  Sir  Edward  Coke,  we  wonder  you  make  no  mention 
of  the  riot  and  violence  of  them  that  stole  away  his 
daughter,  which  was  the  first  ground  of  all  that  noise." 

Bacon's  only  chance  of  escaping  shipwreck  was  at  once 
to  put  about  and  go  upon  the  contrary  tack.  Accord- 
ingly he  stopped  the  prosecution  in  the  Star  Chamber 
against  Sir  Edward  Coke  ;  he  directed  that  Lady  Hat- 
ton  should  be  kept  in  strict  confinement ;  he  declared 
himself  a  warm  friend  to  the  match  of  the  Lady  Frances 
with  Sir  John  Villiers ;  and  he  contrived,  through  Lady 
Compton,  the  mother  of  the  Villierses,  to  induce  Lady 
Hatton  to  consent  to  it.  The  inclinations  of  the  young 
lady  herself  had  been  as  little  consulted  as  if  she  had 
been  a  Queen  of  Spain  about  to  be  married  under  the 
auspices  of  a  Louis  Phillippe  counseled  by  a  Guizot;1 
and  as  she  had  before  copied  and  signed  the  contract 
with  Lord  Oxford  at  the  command  of  her  mother,  she 
next  copied  and  signed  the  following  letter  to  her  mother 
at  the  command  of  her  lather  : — 
"  Madam, 

"  I  must  now  humbly  desire  your  patience  in  giving 
me  leave  to  declare  myself  to  you,  which  is,  that  without 
your  allowance  and  liking,  all  the  world  shall  never  make 
me  entangle  or  tie  myself.  But  now,  by  my  father's  es- 
pecial commandment,  I  obey  him  in  presenting  to  you 
my  humble  duty  in  a  tedious  letter,  which  is  to  know 
your  Ladyship's  pleasure,  not  as  a  thing  I  desire  ;  but  I 
resolve  to  be  wholly  ruled  by  my  father  and  yourself, 
knowing  your  judgments  to  be  such  that  I  may  well  rely 
upon,  and  hoping  that  conscience  and  the  natural  affec- 

1  Written  before  the  revolution  of  February,  1848.  After  the  misfortunes 
which  have  befallen  the  King  and  the  minister,  I  would  not  have  harshly 
censured  their  conduct  in  this  affair  ;  but  those  who  wished  for  the  tran- 
quillity of  Europe  must  ever  regret  that  the  King,  in  recklessly  seeking  the 
supposed  advantage  of  his  dynasty,  forgot  that  he  was  the  first  magistrate  of 
a  free  state ;  and,  still  more,  that  the  minister,  from  whom  better  things 
might  have  been  expected,  prompted  and  encouraged  him  to  follow  his  in- 
clination, instead  of  constitutionally  reminding  him  of  his  duty. — April, 
1849. 


1617.]  EDWARD     COKE.  3u 

tion  parents  bear  to  children  will  let  you  do  nothing  but 
for  my  good,  and  that  you  may  receive  comfort,  I  being 
a  mere  child  and  not  understanding  the  world  nor  what  is 
good  for  myself.  That  which  makes  me  a  little  give  way 
to  it  is,  that  I  hope  it  will  be  a  means  to  procure  a  re~ 
conciliation  between  my  father  and  your  Ladyship.  Also 
I  think  it  will  be  a  means  of  the  King's  favor  to  my  fa- 
ther. Himself  is  not  to  be  misliked ;  his  fortune  is  very 

good,  a  gentleman  well  born So  I  humbly  take 

my  leave,  praying  that  all  things  may  be  to  every  one's 
contentment. 

"  Your  Ladyship's  most  obedient 

"  and  humble  daughter  for  ever, 

"  FRANCES  COKE. 

"  Dear  mother,  believe  there  has  no  violent  means 
been  used  to  me  by  words  or  deeds." 

Lady  Hatton  then  wrote  to  the  King  that  she  would 
settle  her  lands  on  her  daughter  and  Sir  John  Villiers, — 
but  remained  as  spiteful  as  ever  against  her  husband. 
Having  justified  her  conduct  in  always  refusing  to  take 
his  name,  she  says, — 

"  And  whereas  he  accuseth  me  of  calling  him  '  base 
and  treacherous  fellow ;'  the  words  I  cannot  deny,  but 
when  the  cause  is  known  I  hope  a  little  passion  may  be 
excused.  Neither  do  I  think  it  will  be  thought  fit  that, 
though  he  have  five  sons  to  maintain  (as  he  allegeth),  a 
wife  should  therefore  be  thought  unfit  to  have  mainte- 
nance according  to  her  birth  and  fortune." 

The  marriage  settlement  was  drawn  under  the  King's 
own  superintendence,  that  both  father  and  mother  might 
be  compelled  to  do  justice  to  Sir  John  Villiers  and  his 
bride  ;  and  on  Michaelmas  day  the  marriage  was  actually 
celebrated  at  Hampton  Court  Palace,  in  the  presence  of 
the  King  and  Queen  and  all  the  chief  nobility  of  Eng- 
land. Strange  to  say,  Lady  Hatton  still  remained  in 
confinement,  while  Sir  Edward  Coke,  in  nine  coaches, 
brought  his  daughter  and  his  friends  to  the  palace,  from 
his  son's  at  Kingston  Townsend.  The  banquet  was 
most  splendid  ;  a  masque  was  performed  in  the  evening; 
the  stocking  was  thrown  with  all  due  spirit ;  and  the 
bride  and  bridegroom,  according  to  a  long  established 
fashion,  received  the  company  at  their  couc/ite. 


REIGN    OF    JAMES    I.  [1617. 

Sii  Edward  Coke,  however,  by  no  means  derived  from 
this  alliance  the  advantage  he  had  anticipated.  He  was 
restored  to  the  Privy  Council,  but  he  received  no  judi- 
cial promotion  ;  and  he  had  the  mortification  to  see  his 
rival,  Bacon,  by  base  servility,  restored  to  the  entire  con- 
fidence both  of  the  King  and  the  favorite.  What  prob- 
ably galled  him  still  more  was,  that,  very  soon  after- 
wards, Lady  Hatton  was  set  at  liberty.  Abusing  and 
ridiculing  her  husband,  she  became  the  delight  of  the 
whole  Court ; — insomuch  that  the  King  and  Queen  ac- 
cepted a  grand  entertainment  from  her,  at  Hatton 
House,  in  Holborn,  from  which  her  husband  was  ex- 
cluded.1 

It  is  sad  to  relate,  that  the  match — mercenary  on  the 
one  side,  constrained  on  the  other — turned  out  most  in- 
auspiciously.  Sir  John  Villiers  was  created  Viscount 
Parbeck ;  but,  after  much  dissension  between  him  and 
his  wife,  she  eloped  from  him  with  Sir  Robert  Howard, 
and,  after  traveling  abroad  in  man's  attire,  died  young, 
leaving  a  son,  who,  on  the  ground  of  illegitimacy,  was 
not  allowed  to  inherit  the  estate  and  honors  of  her 
husband. 

The  next  four  years  of  Coke's  life  were  passed  very 
ingloriously.  Bacon  still  enjoyed  the  lustre  and  the 
profits  of  the  office  of  Lord  Chancellor,  while  he  him- 
self, regarded  with  suspicion,  was  condemned  to  the  ob- 
scure and  gratuitous  labor  of  the  Council  table,  corres- 
ponding pretty  nearly  to  that  of  our  "  Judicial  Com- 
mittee." a  He  likewise  sat  occasionally  in  the  Star 
Chamber;  and  he  consented  to  act  in  several  commis- 

1  "  The  expectancy  of  Sir  Edward's  rising  is  much  abated  by  reason  of  his 
lady's  liberty,  who  was  brought  in  great  honor  to  Exeter  House  by  my  Lord 
of  Buckingham,  from  Sir  William  Craven's,  whither  she  had  been  remanded 
presented  by  his  Lordship  to  the  King,  received  gracious  usage,  reconciled 
to  her  daughter  by  his  Majesty,  and  her  house  at  Holborn  enlightened  by 
his  presence  at  dinner,  where  there  was  a  royal  feast ;  and,  to  make  it  more 
absolutely  her  own,  express  commandment  given  by  her  Ladyship  that 
neither  Sir  Edward  Coke,  nor  any  of  his  servants  should  be  admitted." — 
Stafford's  Letters  and  Dispatches,  vol.  i.  p.  5. 

\Ve  have  not  any  circumstantial  account  of  the  honors  conferred  on  the 
Lady  Hatton  on  this  occasion  in  her  husband's  absence  ;  but  we  are  in- 
formed that  the  year  before,  when  the  King  dined  at  Wimbledon  with  her 
father,  Lord  Exeter,  "  the  Lady  Hatton  was  there,  and  well  graced,  for  the 
King  kissed  her  twice." — NichoFs  Progresses  of  Jar/its,  vol.  iii.  p.  177 

*  He  was  resworn  a  Privy  Councillor,  Sept.  1617. 


i62i.]  EDWARD     COKE.  313 

sions  issued  by  the  Government.1  The  Lord  Chancellor 
tried  to  keep  him  in  good  humor  by  warm  thanks  for 
his  exertions,  and  by  vague  promises  that  he  should 
have  the  Lord  Treasurer's  place,  or  some  other  great 
preferment.  "  If  Sir  Edward  Coke,"  says  he  in  a  letter 
to  Buckingham,  "  continue  sick  or  keep  in,  I  fear  his 
Majesty's  service  will  languish  too  in  those  things  which 
concern  the  law."3  Again,  "  Sir  Edward  Coke  keeps  in 
still,  and  we  have  miss  of  him."  3  Afterwards,  "  Sir  Ed- 
ward Coke  was  at  Friday's  hearing,  but  in  his  nightcap ; 
and  complained  to  me  he  was  avibulent  and  not  current. 
I  would  be  sorry  he  should  fail  us  in  this  cause :  there- 
fore I  desired  his  Majesty  to  signify  to  him,  taking 
knowledge  of  some  light  indisposition  of  his,  how  much 
he  should  think  his  service  disadvantaged  if  he  should 
be  at  any  day  away."  *  A  reason  assigned  for  the  sus- 
pension of  Council  table  business  was,  "  Sir  Edward 
Coke  comes  not  yet  abroad."  * 

Sitting  in  the  Star  Chamber,  he  was  particularly 
zealous  in  supporting  a  prosecution  against  certain 
Dutch  merchants  charged  with  the  crime  of  exporting 
the  coin  ;  he  voted  that  they  should  be  fined  ;£  150,000 
for  an  offense  which  was  then  considered  "  enormous,  as 
going  to  the  dispoverishment  of  the  realm." '  In  two 
cases,  which  excited  much  interest  at  the  time,  his  se- 
verity was  supposed  to  have  been  sharpened  by  the 
recollection  of  personal  injuries.  It  may  be  recollected 
how  the  Lord  Treasurer  Suffolk  had  lectured  him  for  his 
presumption  in  making  his  coachman  ride  bare-headed 
before  him.  The  same  Lord  Treasurer  had  himself 
fallen  into  disgrace,  and  was  now  prosecuted  in  the  Star 
Chamber,  along  with  his  lady,  for  corrupt  dealings  in  a 
branch  of  the  public  revenue.  "  Sir  Edward  presiding 
when  sentence  was  to  be  pronounced,  he  led  the  way  in 
a  long  and  learned  speech,  showing  how  often  Treasurers 

1  For  the  banishment  of  Jesuits  and  seminary  priests  (Rymer's  Fcedera, 
xvi.  93);  for  negotiating  a  treaty  between  the  Dutch  and  English  mer- 
chants, touching  their  trade  to  the  East  Indies  (Ibid.  170);  for  inquiring 
into  fines  belonging  to  the  Crown  in  regard  of  manorial  dues  (Ibid.  224); 
and  for  examining  into  the  prevalent  offenses  of  transporting  ordnance  into 
foreign  parts  (Ibid.  273).  *  Bacon's  Works,  v.  511. 

*  Ibid.  vi.  214.  4  Ibid.  vi.  230.  8  Ibid.  230,  239. 

6  Stepen's  Introduction  to  Bacon's  Letters,  p.  46. 


314  REIGN    OF    JAMES    I.  [1620. 

had  pillaged  the  King  and  the  people ;  and,  trying  to 
prove  that  by  the  Earl  and  Countess  the  King  had  lost 
.£50,000,  he  proposed  that  they  should  be  fined  double 
that  sum,  and  imprisoned  till  the  fine  was  paid :  on  the 
suggestion  of  Lord  Chief  Justice  Hobart,  it  was  re- 
duced to  £30,000,  for  which  they  were  committed  to 
the  Tower." l 

Coke  was  most  vindictive  against  Yelverton,  the  At- 
torney General,  who  had  filed  the  information  against 
him  in  the  Star  Chamber  for  the  forcible  rescue  of  his 
daughter.  This  distinguished  lawyer,  who  had  prose- 
cuted so  many  others,  having  incurred  the  displeasure 
of  Buckingham,  was  himself  prosecuted  in  the  Star 
Chamber,  on  the  pretense  that  he  had  inserted  some 
clauses  in  a  charter  to  the  City  of  London,  for  which  he 
had  no  warrant  from  the  King.  Sir  Edward  Coke, 
whose  place  it  was  to  begin,  after  a  long  and  bitter 
speech  against  him,  proposed  that  he  should  be  fined 
£6,000,  be  dismissed  from  his  office,  and  be  imprisoned 
in  the  Tower  during  the  King's  pleasure.  Upon  the  in- 
tercession of  other  members  of  the  Court,  the  fine  was 
moderated  to  £4,000,  and  the  rest  of  the  sentence  was 
entirely  submitted  to  his  Majesty.2 

The  Lord  Treasurer's  office  being  put  into  commis- 
sion, Coke  was  for  some  time  a  Lord  of  the  Treasury 
along  with  Archbishop  Abbott,8  and  he  seemed  to  be 
coming  into  greater  favor, — as  if  the  King  had  been 
about  to  act  upon  the  suggestion  that  he  might  be  use- 
ful in  the  repair  of  the  revenue.  Bacon  gave  the  follow- 
ing astute  advice, — "As  I  think  it  were  good  his  hopes 
were  at  an  end  in  some  kind,  so  I  could  wish  they  were 
raised  in  some  other." 4 

Accordingly,  his  opinion  was  asked  about  the  pro- 
priety of  calling  a  new  parliament,  after  parliaments  had 
been  disused  for  six  whole  years.6  We  are  told  that  he 
was  in  most  of  the  confidential  conferences  of  state  on 
the  management  of  the  elections,6  although  he  could 

1  Wilson's  Life  of  King  James  I.  p.  706. 

s  Stephen's  Introduction,  p.  17.  Coke  escaped  the  disgrace  of  the  exe- 
cution of  Sir  Walter  Raleigh,  and  probably  could  have  made  no  effort  to 
save  him. 

3  Devon's  Pell  Records,  temp.  Jac.  I. 

4  Bacon's  Works,  v.  381.  *  Ibid.  531.  •  Ibid.  536. 


i6ai.]  EDWARD     COKE. 


3*5 


scarcely  have  been  consulted  when  the  proclamation  was 
settled  in  which  the  King  warned  his  faithful  subjects 
not  to  return  to  the  House  of  Commons  "bankrupts 
nor  necessitous  persons,  who  may  desire  long  parlia- 
ments for  their  private  protection  ;  nor  yet  curious  and 
wrangling  lawyers,  who  may  seek  reputation  by  stirring 
needless  questions.'" ' 

Coke  himself  was  elected  for  the  borough  of  Liskeard 
in  Cornwall ;  and  there  seemed  a  prospect  of  his  cor- 
dially co-operating  with  the  Government.  He  might 
have  thought  that  this  course  would  not  be  inconsistent 
with  his  independence  or  his  patriotism,  for  the  Lord 
Chancellor  had  declared  that  the  elections  were  to  be 
carried  on  "  without  packing,  or  degenerating  arts,  but 
rather  according  to  true  policy."  a 

There  was.  however,  too  much  reciprocal  jealousy 
rankling  in  the  minds  of  the  rivals  to  render  it  possible 
that  they  should  ever  cordially  act  together,  although 
terms  of  decent  courtesy  had  for  some  time  been  es- 
tablished between  them. 

Coke's  envy  was  now  much  excited  by  the  immense 
glory  which  Bacon  acquired  by  the  publication  of  cut 
NOVUM  ORGANUM.  Having  received  a  copy  from  the 
author,  he  wrote  in  the  fly-leaf,  "  Edw.  C.  ex  dono  Aus- 
tens," and  he  vented  his  spleen  in  the  following  sarcastic 
lines,  which  he  subjoined  : — 

"  Auctori  Consilium. 

Instaurare  paras  veterum  documenta  sophorum, 
Instaura  leges,  justitiamque  prius." 

In  the  title-page,  which  bore  the  device  of  a  ship  pass- 
ing under  a  press  of  sail  through  the  pillars  of  Hercules, 
he  marked  his  contempt  of  all  philosophical  speculations 
by  adding  a  distich  in  English  : 

*  "  It  deserves  not  to  be  read  in  schooles, 

But  to  be  freighted  in  the  Ship  of  Fools."* 

Just  as  Parliament  was  about  to  assemble,  a  vacancy 
occurred  in  the  high  offices  to  which  Coke  aspired,  aad 
he  might  have  been  appeased.  But  Bacon  was  so  much 
intoxicated  by  his  political  ascendancy  and  his  literary 

1  I  Parl.  Hist.  1169.  *  Bacon's  Works,  v.  531. 

3  Alluding  to  Sebastian  Brand's  famous  "  SllYP  OF  FOLVS." — This  pre- 
sentation copy  of  the  Novum  Organum  ia  still  preserved  at  Holkham. 


3i6  REIGN    OF    JAMES    I.  [1621. 

fame,  that  he  thought  he  might  now  safely  despise  the 
power  of  his  rival,  and  slight  him  with  impunity.  Ac- 
cordingly, Montagu,  Coke's  successor  as  Chief  Justice 
of  the  King's  Bench,  was  promoted  to  be  Lord  Treas- 
urer, and  raised  to  the  peerage;  and  the  Chief  Justice- 
ship of  the  King's  Bench,  instead  of  being  restored  to 
him  who  had  held  it  with  such  lustre,  was  conferred 
upon  an  obscure  lawyer  called  Sir  James  Ley.1  The  ex- 
Chief  Justice  was  highly  exasperated,  and  he  resolved 
to  devote  himself  to  revenge.  He  cared  little  for  the 
office  of  High  Steward  of  the  University  of  Cambridge, 
which  had  lately  been  conferred  upon  him ;  and  patriot- 
ism was  his  only  resource. 

It  should  be  related  of  him,  however,  that,  although 
he  had  no  taste  for  polite  literature  or  philosophy,  he 
did  not  waste  his  leisure  in  idleness,  but  took  delight  in 
juridical  studies.  After  his  dismission  from  the  office 
of  Chief  Justice,  he  prepared  the  I2th  and  I3th  Parts 
of  his  Reports,  which,  as  they  contained  a  good  deal 
against  the  High  Commission  Court,  and  against  the 
King's  power  to  issue  proclamations  altering  the  law  of 
the  land,  were  not  published  in  his  lifetime.  He  then 
oegan  his  great  work — called  his  "  First  Institute  " — the 
Commentary  on  Littleton, — which  may  be  considered 
the  "  Body  of  the  Common  Law  of  England."  This 
was  the  solace  of  his  existence — for  he  still  lived  sep- 
arate from  his  wife — and,  amidst  the  distraction  of  poli- 
tics, no  day  passed  over  him  without  his  indulging  in  an 
exercitation  to  illustrate  'iftUenage,  Continual  <?51aim,  <?ollat- 
etjal  MJar^anty,  or  some  other  such  delightful  subject. 

The  meeting  of  parliament,  on  the  3Oth  of  January, 
1621,  may  be  considered  the  commencement  of  the 
great  movement  which,  exactly  twenty-eight  years  after- 
wards, led  to  the  decapitation  of  an  English  sovereign 
under  a  judicial  sentence  pronounced  by  his  subjects. 
The  Puritans  had  been  gradually  gaining  strength,  and 
were  returned  in  considerable  numbers  to  the  new  House 
of  Commons.  Sir  Edward  Coke,  who  had  hitherto  pro- 
fessed high-Church  principles,  placed  himself  at  their 
head,  and,  in  struggling  for  the  redress  of  grievances,  he 
was  supported  by  men  of  all  parties  except  the  imme- 

1  Orig.  Jur.  104. 


1 62 1.]  EDWARD     COKE,  317 

diate  retainers  of  the  Court.  The  irregular  modes  re- 
sorted to  for  the  purpose  of  raising  money,  particularly 
by  the  grant  of  monopolies,  in  violation  of  the  engage- 
ments contracted  by  the  Crown  at  the  conclusion  of  the 
reign  of  Queen  Elizabeth,  had  filled  the  whole  nation 
with  discontent. 

Sir  Edward  Coke,  to  establish  his  popularity,  begin  his 
operations  by  moving  an  address  to  the  King  "  for  the 
better  execution  of  the  laws  against  Jesuits,  Seminary 
Priests,  and  Popish  Recusants,"  which  was  carried  al- 
most unanimously.  The  Upper  House  having  concurred 
in  the  address,  it  was  read  to  James  by  Lord  Bacon. 
This  was  the  last  time  of  his  officiating  as  Chancellor  in 
the  royal  presence. 

His  destruction  was  at  hand,  and  all  the  proceedings 
against  him  were  conducted  or  prompted  by  his  revenge- 
ful rival.  A  motion  being  made  by  Mr.  Secretary  Cal- 
vert  for  a  supply,  Sir  Edward  Coke  moved,  as  an  amend- 
ment, "  That  supply  and  grievances  should  be  referred 
together  to  a  committee  of  the  whole  House."  We 
have  the  following  abstract  of  his  speech  : — 

"  '  Virtus  silere  in  convivio,  vitium  in  consilio!  I  joy 
that  all  are  bent  with  alacrity  against  the  enemies  of 
God  and  us, — Jesuits,  Seminaries,  and  Popish  Catholics. 
The  indulgence  shown  to  them  was  a  grievance  com- 
plained of  in  the  8th 'year  of  this  reign.  I  and  Popham 
were  thirty  days  in  examination  of  the  Gunpowder  Plot 
at  the  Tower.  The  root  of  it  was  out  of  the  countries 
belonging  to  the  Pope,  and  Vaux  repented  him  that  by 
delay  he  had  failed.  God  then,  and  in  1588,  delivered 
us  for  religion's  sake.  Let  us  guard  our  privileges,  for 
the  privilege  of  the  House  regard  the  whole  kingdom  ; 
like  a  circle,  which  ends  where  it  began.  Take  heed 
that  we  lose  not  our  liberties  by  petitioning  for  liberty 
to  treat  of  grievances.  In  Edward  III.'s  time,  to  treat 
of  grievances  a  parliament  was  held  yearly.  There  has 
been  no  parliament  now  for  near  seven  years,  and  pro- 
clamations are  substituted  for  statutes.  But  no  procla- 
mation is  of  force  to  alter  the  law  ;  and,  where  they  are 
at  variance,  the  law  is  to  be  obeyed  and  not  the  procla- 
mation.1 No  doubt  a  due  supply  ought  to  be  granted. 

1  Camden  says,  "  Edward  Coke  bore  himself  this  day  with  the  truest  pa- 


3i 8  REIGN    OF    JAMES    I.  [1621. 

» 

The  King's  ordinary  charge  and  expenses  are  much 
about  one  ;  the  extraordinary  are  ever  borne  by  the  sub- 
ject ;  the  King  shall  be  no  beggar.  If  all  the  corn  be 
brought  to  the  right  mill,  I  will  venture  my  whole  estate 
that  the  King's  will  defray  his  ordinary  charges.  But  let  us 
consider  grievances,  and  supply  one  with  another.  The 
remedying  of  grievances  will  encourage  the  House,  and 
enable  us  to  increase  the  supply." 

The  amendment  was  carried  without  a  division,  and 
it  was  resolved  to  go  upon  grievances  and  supply  that 
afternoon.  Coke  was  chosen  chairman  of  the  com- 
mittee, and  immediately  began  with  Sir  Giles  Mom- 
pesson  and  the  monopolists.1 

He  gained  much  applause,  a  few  days  after,  from  his 
treatment  of  a  flippant  and  irreverent  speech  against  a 
Bill  "  for  the  better  keeping  of  the  Sabbath1"  made  by  a 
young  member  of  the  name  of  Sheppard,  who  said — 

"  Every  one  knoweth  that  Dies  Sabbati  is  Saturday, 
so  that  you  would  forbid  dancing  on  Saturday  ;  but  to 
forbid  dancing  on  Sunday  is  in  the  face  of  the  King's 
'  Book  of  Sports ;'  and  King  David  says,  '  Let  us  praise 
God  in  a  dance.'  This  being  a  point  of  divinity,  let  us 
leave  it  to  divines ;  and  since  King  David  and  King 
James  both  bid  us  dance,  let  us  not  make  a  statute 
against  dancing.  He  that  preferred  this  bill  is  a  dis- 
turber of  the  peace  and  a  Puritan." 

Sir  Edward  Coke :  "  Whatsoever  hindereth  the  ob- 
servation of  the  Sabbath  is  against  the  Scripture.  It  is 
in  religion  as  in  other  things  :  if  a  man  goes  too  much 
on  the  right  hand,  he  goes  to  superstition ;  if  too  much 
on  the  left,  to  profaneness  and  atheism ;  and  take  away 
reverence,  you  shall  never  have  obedience.  If  it  be  per- 
mitted thus  to  speak  against  such  as  prefer  bills,  we 
should  have  none  preferred." 

A  motion  for  Mr.  Sheppard's  expulsion  was  then  car- 
ried, "  and,  being  called  to  the  bar,  on  his  knees  he 
heard  his  sentence,  '  That  the  House  doth  remove  him 
from  the  service  of  this  House  as  being  unworthy  to  be 
a  member  thereof."* 

trioti?m,  and  taught  that  no  proclamation  was  of  weight  against  parlia- 
ment."— Camdens  Annals  of  James  /.,  p.  67. 

1  Parl.  Hist.  1175-1188.  *ibid.  1194. 


i62i.]  EDWARD    COKE.  319 

The  ex-Chief  Justice  worked  diligently  in  his  com- 
mittee of  grievances,  and  prepared  a  report  exposing 
the  illegal  grants  of  monopolies  to  Sir  Giles  Mompesson, 
to  Sir  Edward  Villiers,  the  brother  of  the  favorite,  and 
to  many  others,  by  which  the  public  had  been  cruelly 
defrauded  and  oppressed.  In  answer  to  the  argument 
of  the  courtiers  that  these  grants  were  all  within  the 
scope  of  the  King's  prerogative,  he  said — 

"  The  King  hath  indisputable  prerogative,  as  to  make 
war;  but  there  are  things  indisputably  beyond  his  pre- 
rogative, as  to  grant  monopolies.  Nothing  the  less, 
monopolies  are  now  grown  like  hydras'  heads ;  they 
grow  up  as  fast  as  they  are  cut  off.  Monopolies  are 
granted  de  vento  et  sole  ;  of  which  we  have  an  example 
in  the  patent  that  in  the  counties  of  Devon  and  Corn- 
wall none  shall  dry  pilchards  in  the  open  air  save  the 
patentee,  or  those  by  him  duly  authorized.  The  mo- 
nopolist who  engrosseth  to  himself  what  should  be  free 
to  all  men  is  as  bad  as  the  depopulator,  who  turns  all 
out  of  doors,  and  keeps  none  but  a  shepherd  and  his 
dog ;  and  while  they  ruin  others  they  never  thrive  or 
prosper,  but  are  like  the  alchymist,  with  whom  omne 
vert  it  ur  in  fumum"1 

The  report  was  agreed  to,  and  Sir  Edward  Coke  was 
directed  to  go  to  the  bar  of  the  Upper  House  to  com- 
municate a  copy  of  it  to  their  Lordships,  and  to  ask  a 
conference,  in  which  they  might  be  called  upon  to  con- 
cur in  it. 

A  very  striking  scene  was  exhibited  when  Bacon  came 
from  the  woolsack  to  the  bar  of  the  House  of  Lords  to 
receive  the  messengers,  for  he  knew  that  another  com- 
mittee of  the  Commons  was  sitting  to  investigate 
charges  of  judicial  corruption  against  himself,  and  he 
did  not  know  but  that  they  might  now  be  come  to  im- 
peach him,  and  to  pray  that  he  might  be  committed  to 
to  the  Tower.  He  was  greatly  relieved  when  the  true 
purport  of  the  message  was  disclosed,  and  he  gladly  an- 
nounced that  the  conference  was  agreed  to.* 

But  the  respite  was  short.  The  other  committee  was 
going  on  most  vigorously  and  effectively  with  the  in- 

1  I  Parl.  Hist.  1195. 

*See  Lives  of  the  Chancellors,  ii.  388  ;  I  Parl.  Hist.  1199. 


320  REIGN    OF    JAMES    I.  [1621. 

vestigation  of  the  Lord  Chancellor's  delinquency.  Coke, 
out  of  decency,  declined  being  the  chairman  of  it  ;  but 
he  guided  all  its  proceedings,  and  the  task  of  drawing 
up  the  charges  arising  out  of  the  bribes  received  from 
Aubrey  and  Egerton  was  confided  to  him  along  with  Sir 
Dudley  Digges,  Sir  Robert  Phillips,  and  Mr.  Noy,  after- 
wards the  author  of  the  writ  of  ship-money, — then  a 
factious  demagogue.1 

Bacon  had  very  nearly  eluded  the  blow  by  inducing 
the  King  to  send  a  message  to  the  House  of  Commons, 
"  that  if  this  accusation  could  be  proved,  his  Majesty 
would  punish  the  party  accused  to  the  full,"  and  that  he 
would  grant  a  commission  under  the  great  seal  to  ex- 
amine all  upon  oath  that  could  speak  in  this  business. 
The  Commons  were  about  to  return  an  answer  agreeing 
to  this  proposal,  when  Sir  Edward  Coke  begged  they 
would  take  heed  not  to  hinder  the  manner  of.  their  par- 
liamentary proceeding  against  a  great  delinquent.  A 
resolution  was  then  adopted  to  prosecute  the  case  before 
the  Lords.8 

The  impeachment  being  voted,  it  was  intended  that 
Sir  Edward  Coke,  as  manager,  should  conduct  it ;  but 
he  lost  this  gratification  by  the  plea  of  guilty,  and  he 
was  obliged  to  be  satisfied  with  attending  the  Speaker 
to  the  bar  of  the  House  of  Lords  when  judgment  was  to 
be  prayed,  and  hearing  the  Chief  Justice  of  the  King's 
Bench,  by  order  of  the  Lords,  pronounce  these  words, 
which  I  fear  caused  an  ungenerous  thrill  of  pleasure  in 
his  bosom  : — 

"  Francis  Lord  Viscount  St.  Albans  having  confessed 
the  crimes  and  misdemeanors  whereof  he  was  im- 
peached, this  House  doth  adjudge  that  he  pay  a  fine  to 
the  King  of  .£40,000, — that  he  be  imprisoned  in  the 
Tower  of  London  during  the  King's  pleasure, — that  he 
be  forever  incapable  of  any  office,  place,  or  employment 
in  the  state  or  commonwealth, — and  that  he  never  sit  in 
parliament,  or  come  within  the  verge  of  the  court.'" 

The  part  which  Coke  had  hitherto  taken  in  this  affair 
was  according  to  the  rules  of  law  and  justice,  and  the 
eagerness  with  which  he  had  discharged  his  duty  might 

1  2  St.  Tr.  1087.  J I  Parl.  Hist.  1228. 

8  2  St.  Tr.  1037-1119.     Bacon,  on  account  of  illness,  was  not  present. 


LINCOLN'S  INN,    AiJorr   1720. 


1 62 1.]  EDWARD    COKE.  321 

be  excused  by  the  sense  of  personal  injury  under  which 
he  smarted  ;  but  he  must  unequivocally  condemn  the 
want  of  heart  which  he  afterwards  displayed,  in  never 
visiting  his  fallen  foe  in  the  Tower  or  in  Gray's  Inn, — in 
making  no  attempt  to  obtain  a  mitigation  of  the  sentence 
— and  in  never  sending  him  a  letter,  or  even  a  kind  mes- 
sage, to  console  him.  I  can  find  no  trace  of  these  two 
eminent  men,  who  had  been  so  long  rivals,  having  thence- 
forth ever  met  or  corresponded  with  one  another.  Bacon 
did  not  again  sit  in  parliament,  or  appear  in  public  life, 
but  veiled  his  errors  by  devoting  himself  to  the  pursuits 
of  literature  and  philosophy  ; — while  Coke,  till  he  carried 
the  PETITION  OF  RIGHT,  was  constantly  engaged  in  the 
political  arena. 

If  James  I.  and  Buckingham  had  acted  discreetly,  they 
would  have  forgiven  the  ex-Chief  Justice's  patriotic  aber- 
ration, and  tried  to  draw  him  back  to  them,  by  now 
offering  him  the  great  seal ;  but  they  had  put  themselves 
into  the  hands  of  a  shrewd  Welsh  parson,  whose  sub- 
serviency they  could  rely  upon,  and  whom,  to  the  aston- 
ishment of  the  world,  they  suddenly  proclaimed  Lord 
Keeper.  Coke  was  even  fiercer  against  the  Court  than 
he  had  been  before  Bacon's  disgrace. 

After  the  triumph  gained  by  the  people  in  the  over- 
throw of  monopolies,  and  the  conviction  of  the  Lord 
Chancellor  for  bribery,  the  King  was  impatient  to  get  rid 
of  Parliament  till  the  public  excitement  should  subside, 
—but  yet  did  not  wish  to  give  offense  either  by  a  sudden 
dissolution  or  prorogation ;  and  he  intimated  his  pleasure 
that  the  two  Houses  should  adjourn  themselves  from 
May  till  November. 

Sir  Edward  Coke  violently  resented  this  proceeding, 
and  carried  a  motion  for  a  conference  with  the  Lords 
that  they  might  concert  measures  to  prevent  it.  Having 
managed  the  conference,  he  reported  that  the  Lords  had 
agreed  to  a  joint  address,  praying  the  King  "  to  give 
them  further  time  to  finish  the  bills  which  they  were 
considering."  His  Majesty,  however,  returned  a  sharp 
answer,  saying  that  "  the  address  was  an  improper  inter- 
ference with  his  prerogative,  as  he  alone  had  the  power 
to  call,  adjourn  and  determine  parliaments."1  Sir  Ed- 

1  I  Parl.  Hist.  1265. 
I — 21 


323  REIGN    OF    JAMES    I.  [1621. 

ward  Coke  still  complained  of  this  proceeding,  and,  ad- 
mitting the  King's  power  to  prorogue  or  dissolve  parlia- 
ments, insisted  that  adjournment  ought  to  be  a  sponta- 
neous act  of  the  House.  Nevertheless,  the  King  sent  a 
commission,  requiring  that  the  proposed  adjournment 
should  be  made.  The  House  of  Lords  obeyed  ;  but  the 
Commons,  on  the  advice  of  Sir  Edward  Coke,  refused  to 
allow  the  commission  to  be  read.  Still  there  was  a  ma- 
jority for  adjourning,  according  to  the  King's  pleasure. 
"  Then  Sir  Edward  Coke,  with  tears  in  his  eyes,  standing 
up,  recited  the  collect  for  the  King  and  his  issue,  adding 
only  to  it,  '  and  defend  them  from  their  cruel  enemies.' 
After  which  the  House  adjourned  to  the  I4th  of  Novem- 
ber." ' 

It  should  be  mentioned,  to  the  credit  of  the  Chief 
Justice,  that  during  this  session,  although  he  propounded 
some  doctrines  on  the  subject  of  money  which  no  class 
of  politicians  would  now  approve,  he  steadily  supported 
free  trade  in  commodities.  A  bill  "to  allow  the  sale  of 
Welsh  cloths  and  cottons  in  and  through  the  kingdom 
of  England,"  being  opposed  on  "  reasons  of  state,"  he 
said,  "  Reason  of  state  is  often  used  as  a  trick  to  put  us 
out  of  the  right  way  ;  for  when  a  man  can  give  no  reason 
for  a  thing,  then  he  flyeth  to  a  higher  strain,  and  saith  it 
is  a  reason  of  state.  Freedom  of  trade  is  the  life  of 
trade ;  and  all  monopolies  and  restrictions  of  trade  do 
overflow  trade."*  On  the  same  principles  he  supported 
a  bill  "  to  enable  merchants  of  the  staple  to  transport 
woolen  cloth  to  Holland.'"  And  a  bill  being  brought  in 
"  to  prohibit  the  importation  of  corn,  for  the  protection 
of  tillage,"  he  strenuously  opposed  it,  saying,  "If  we  bar 
the  importation  of  corn  when  it  aboundeth,  we  shall  not 
have  it  imported  when  we  lack  it.  I  never  yet  heard 
that  a  bill  was  ever  before  preferred  in  parliament  against 
the  importation  of  corn,  and  I  love  to  follow  ancient  pre- 
cedents. I  think  this  bill  truly  speaks  Dutch,  and  is  for 
the  benefit  of  the  Low  Countrymen."4 

During  the  recess  he  counteracted  a  selfish  plot  of  the 
new  Lord  Keeper  for  "  depriving'  Archbishop  Abbott, 
who,  in  hunting  in  his  park,  had  unfortunately  killed  a 

1  I  Parl.  Hist.  1295.  *  Proceedings  and  Debates,  i.  308,  iL  155. 

1  Ibid.  ii.  35.  «  Ibid.  ii.  87. 


i62i.]  EDWARD    COKE.  323 

man  with  a  cross-bow.  The  attempt  was  to  make  it 
"  culpable  homicide,"  on  the  ground  that  the  Archbishop 
was  employed  in  an  unlawful  act  when  the  accident  hap- 
pened. But  Coke  asserted  that,  "  by  the  laws  of  this 
realm,  a  bishop  may  rightfully  hunt  in  a  park  ; — hunt  he 
may  by  this  very  token,  that  a  bishop,  when  dying,  is  to 
leave  his  pack  of  hounds  (called  muta  cattuiri)  to  the 
King's  free  will  and  disposal."  ' 

When  parliament  again  met  in  November,  Coke's 
spleen  was  aggravated  by  a  long  and  pedantic  lecture  to 
the  two  Houses,  delivered  by  Lord  Keeper  Williams, 
who  pretended  to  hold  regularly-bred  lawyers  in  con- 
tempt ;  * — and  he  exerted  himself  still  more  strenuously 
against  the-  Government.  The  subjects  which  then  agi- 
tated the  public  were  the  Prince's  proposed  match  with 
the  Infanta  of  Spain,  which  was  strongly  opposed  by  the 
popular  party, — and  the  war  for  the  recovery  of  the  Pal- 
atinate, which  they  strongly  desired.  Sir  Edward  Coke 
moved  an  address  to  the  King  on  these  subjects,  say- 
ing :— 

"  Melius  est  recurrere  quam  male  currere.  It  is  true 
that  the  father,  even  amongst  private  men,  should  have 
power  to  marry  his  children,  but  we  may  petition  the 
King  how  his  prerogatives  are  to  be  exercised  for  the 
public  good.  So  the  voice  of  Bellona,  not  the  turtle, 
must  be  heard.  The  King  must  either  abandon  his 
daughter,  or  engage  himself  in  war.  The  hope  of  this 
match  doth  make  the  Papists  insolent.  To  cut  off  their 
hopes,  he  ought  to  marry  the  Prince  to  one  of  his  own 
religion.  On  such  matters  the  greatest  princes  have 
taken  the  advice  of  parliament.  Edward  I'll,  did  confer 
with  the  Commons  about  his  own  marriage  ;  and  in  the 
forty-second  year  of  his  reign,  growing  weary  of  bearing 
his  armor,  treating  for  peace,  he  acquainted  the  Cc%i- 
monswith  the  treaty, — whereupon  the  Commons  did  be- 
seech him  '  that  he  would  take  his  sword  in  his  hand,  for 
a  just  war  was  better  than  a  dishonorable  peace.'  In  a 
record,  4  Hen.  V.,  we  read  these  words  : — 'it  shall  hold 
for  ever  that  it  shall  be  lawful  for  the  Commons  to  talk 
of  the  safety  of  the  kingdom,  and  the  grievances  and  rem- 
edies thereof.'  The  very  writ  of  summons  shows  that 

'  Collier's  Eccl.  Hist.  ii.  733,  •  I  Parl.  Hist.  1296. 


324  REIGN    OF    JAMES    I.  [1621. 

we  are  called  hither  to  advise  for  the  defense  and  state 
of  the  King  and  the  kingdom."  ' 

The  address  was  carried,  but  drew  down  an  answer 
strongly  reflecting  on  the  mover: — 

"  We  wish  you  to  remember  that  we  are  an  old  and 
experienced  King,  needing  no  such  lessons ;  being  in 
our  conscience  freest  of  any  King  alive  from  hearing  or 
trusting  idle  reports,  which  so  many  of  your  House  as 
are  nearest  us  can  bear  witness  unto  you,  if  you  would 
give  as  good  ear  unto  them  as  you  do  to  some  tribuni- 
tial  orators  among  you."  2 

The  King  more  deeply  resented  another  address  from 
the  Commons,  which  they  styled  an  "  Apologetic  Peti- 
tion," and  in  which  they  maintained  "  that  they  had 
merely  expressed  their  opinion  with  all  dutifulness  respect- 
ing the  Spanish  match  and  the  assistance  to  be  given 
to  the  King  of  Bohemia."  He  now  said  to  them, — 

"  This  plenopotency  of  yours  invests  you  in  all  power 
upon  earth,  lacking  nothing  but  the  Pope's,  to  have  the 
keys  also  of  heaven  and  purgatory.  And  touching  your 
excuse  of  not  determining  any  thing  concerning  the 
match  of  our  dearest  son,  but  only  to  tell  your  opinion  ; 
first,  we  desire  to  know  how  you  could  have  presumed 
to  determine  in  that  point,  without  committing  high 
treason.  In  our  former  answer  to  you,  we  confess  we 
meant  Sir  Edward  Coke's  foolish  business.  It  had  well 
become  him,  especially  being  our  servant,  and  one  of 
our  council,  to  have  explained  himself  unto  us,  which 
he  never  did,  though  he  never  had  access  refused  to 
him." 

In  a  letter  to  the  Speaker,  the  King  gave  this  com- 
mand,— 

"  Make  known  in  our  name  unto  the  House,  that 
nofle  therein  shall  presume  henceforth  to  meddle  with 
any  thing  concerning  our  government,  or  deep  matters 
of  state.  .  .  You  shall  resolve  them  in  our  name,  that 
we  think  ourselves  very  free  and  able  to  punish  any 
man's  misdemeanor  in  parliament,  as  well  during  the 
sitting  as  after, — which  we  mean  not  to  spare  hereafter, 
upon  any  occasion  of  any  man's  insolent  behavior  there 
that  shall  be  ministered  unto  us." 

1  I  ParL  Hist.  1322.  •  Ibid.  1319. 


i62i.J  EDWARD     COKE.  325 

His  Majesty  further  insisted  that  the  House  had  no 
privileges  except  such  as  were  granted  by  him  and  his 
predecessors, — intimating  that  the  privileges  so  granted, 
if  abused,  might  be  recalled.  This  seems  to  have  thrown 
the  House  into  a  flame ;  and,  according  to  the  Parlia- 
mentary History,1 

"  Sir  Edward  Coke  would  have  us  make  a  Protestation 
for  our  privileges:  that  he  can  tell  us  when  both  Houses 
did  sit  in  parliament  together,  both  the  Lords  and  the 
Commons :  that  the  demand  of  the  privileges  of  this 
House  by  the  Speaker  was  after  they  began  to  be  ques- 
tioned, and  used  to  be  done  at  the  first  meeting  of  the 
parliament,  in  this  manner,  that  if  the  House  might  not 
have  their  privileges  and  liberties,  they  would  sit  silent. 
He  protesteth  before  God  that  he  ever  speaketh  his  own 
conscience,  but  he  doth  not  ever  speak  his  own  things, 
for  he  for  the  most  part  speaketh  by  warrant  of  prece- 
dents. '  Omnis  qualitas  in  principali  subjecto  est  in 
summo  gradu'  as  '  lumen  in  sole]  and  so  are  the  privi- 
leges (which  are  the  laws)  of  the  parliament  here  in  par- 
liament, l  in  principali  subjecto  1  and  therefore,  '  in  summo 
gradu.'  The  liberties  and  privileges  of  parliament  are 
the  mother  and  life  of  all  laws  ;  whereas  the  King  saith, 
'  he  liketh  not  our  styling  our  liberties  our  ancient  in- 
heritance, yet  he  will  maintain  and  give  us  leave  to  enjoy 
the  same ;'  indeed,  striketh  at  the  root  of  all  our  privi- 
leges. '  Consuetude  Regni,'  is  the  law  of  this  kingdom. 
He  would  have  us  stand  upon  the  defense  of  our  privi- 
leges in  this  point."  3 

The  matter  was  referred  to  a  committee,  who  agreed 
to  a  Protestation, — 

"  That  the  liberties,  franchises,  privileges,  and  juris- 
dictions of  parliament  are  the  ancient  and  undoubted 
birthright  and  inheritance  of  the  subjects  of  England  ; 
and  that  the  arduous  and  urgent  affairs  concerning  the 
King,  state,  and  the  defense  of  the  realm,  and  of  the 
Church  of  England,  and  the  making  and  maintenance 
of  laws,  and  redress  of  mischiefs  and  grievances  which 
daily  happen  within  this  realm,  are  proper  subjects  and 
matter  of  counsel  and  debate  in  parliament ;  and  that 
in  the  handling  and  proceeding  of  those  businesses, 

1  Vol.  i.  p.  1355.  *  Parl.  Hist.  1349. 


326  REIGN    OF    JAMES    I.  [1622 

every  member  of  the  House  hath,  and  of  right  ought 
to  have,  freedom  of  speech  to  propound,  treat,  reason, 
and  bring  to  conclusion  the  same ;  that  the  Commons 
in  parliament  have  like  liberty  and  freedom  to  treat  of 
those  matters  in  such  order  as  in  their  judgments  shall 
seemxfittest,  and  that  every  such  member  of  the  said 
House  hath  like  freedom  from  all  impeachment,  impris- 
onment, and  molestation  (other  than  by  censure  of  the 
House  itself)  for  or  concerning  any  speaking,  reasoning, 
or  declaring  of  any  matter  or  matters  touching  the  par- 
liament or  parliament  business."1 

This  Protestation,  drawn  by  Sir  Edward  Coke,  was, 
on  his  recommendation,  adopted  by  the  House,  and  en- 
tered in  the  Journals.  But  when  the  King  heard  of  it 
he  was  frantic.  He  immediately  prorogued  the  Parlia- 
ment, and  ordered  the  Journals  to  be  brought  to  him  at 
Whitehall.  Then,  having  summoned  a  meeting  of  the 
Privy  Council,  and  ordered  the  Judges  to  attend,  he  in 
their  presence  "  did  declare  the  said  Protestation  to  be 
invalid  and  of  no  effect;  and  did  further,  manu  sud  pro- 
frid,  take  it  out  of  the  Journal  Book  of  the  Clerk  of 
the  Commons'  House  of  Parliament."  Having  torn  it 
in  pieces,  he  ordered  an  entry  to  be  made  in  the  Council 
Books,  stating  that,  if  allowed  to  remain,  "  it  might 
have  served  for  future  times  to  invade  most  of  the  rights 
and  prerogatives  annexed  to  the  Imperial  Crown  of  this 
realm." " 

This  violent  proceeding  was  soon  followed  by  a  Pro- 
clamation, which,  after  dwelling  on  th*e  misdeeds  of  the 
House  of  Commons,  particularly  the  PROTESTATION, — 
"  an  usurpation  which  the  majesty  of  a  King  can  by  no 
means  endure,"  concluded  by  dissolving  the  Parliament.' 

1  Tarl.  Hist.  1361.  *  Ibid.  1363. 

4  Ibid.  1370.  It  was  very  severe  on  Coke  and  his  associates  as  ill-tem- 
pered spirits,"  and  accused  them  of  "  sowing  tares  with  the  wheat.' 


CHAPTER  X. 

CONCLUSION  OF  THE  LIFE  OF  SIR  EDWARD  COKE. 

FROM  the  middle  of  the  sixteenth  to  the  middle 
of  the  eighteenth  century,  there  were  few  public 
men  of  much  note  who,  in  the  course  of  their 
lived,  had  not  been  sent  as  prisoners  to  the  Tower  of 
London.  This  distinction  was  now  acquired  by  Sir  Ed- 
ward Coke.  He  was  committed  along  with  Selden, 
Prynne,  and  other  leaders  of  the  opposition.  At  the 
same  time,  orders  were  given  for  sealing  up  the  locks 
and  doors  of  his  house  in  Holborn  and  of  his  chambers 
in  the  Temple,  and  for  seizing  his  papers.1  A  general 
pardon  being  about  to  be  be  published,  according  to  the 
usage  on  the  dissolution  of  parliament,  the  Council 
deliberated  for  some  time  respecting  the  mode  by  which 
he  should  be  deprived  of  the  benefit  of  it.  The  first 
expedient  was  to  exclude  him  by  name ;  and  then  the 
proposal  was  adopted  of  preferring  an  indictment  against 
him,  so  that  he  might  come  within  the  exception  of 
such  as  were  under  prosecution. 

The  ex-Chief  Justice  being  carried  to  the  Tower,  and 
lodged  in  a  low  room  which  had  once  been  a  kitchen,  he 
found  written  on  the  door  of  it  by  a  wag — "  This  room 
has  long  wanted  a  Cook  ;"*  and  he  was  soon  after  com- 
plimented in  the  following  distich, — 

"  Jus  condere  cocus  potuit,  sed  condere  jura 
Non  potuit ;  potuit  condere  jura  cocus." 

Instead  of  being  prosecuted  for  his  speeches  in  the 

1  The  "  Instructions  to  the  Gentlemen  that  are  to  search  Sir  Edward 
Coke's  papers,"  are  still  extant.  There  is  an  injunction  "  to  take  some  of 
his  servants  or  friends  in  their  company,  who  shall  be  witnesses  (hat  the7 
meddle  with  nothing  that  concerns  his  land  or  private  estate." — CoL'-on  MS., 
Titus  B.  vii.  204. 

8  D'Israeli's  James  I.,  p.  125. 


328  REIGN    OF    JAMES    I.  [16-. 

House  of  Commons,  the  true  ground  of  his  imprison- 
ment, he  was  examined  before  the  Privy  Council  on  a 
stale  and  groundless  charge,  that  he  had  concealed  some 
depositions  taken  against  the  Earl  of  Somerset ;  he  was 
accused  of  arrogant  speeches  when  Chief  Justice,  espe- 
cially in  comparing  himself  to  the  prophet  Samuel ;  and 
an  information  was  directed  to  be  filed  against  him  in 
the  Star  Chamber,  respecting  the  bond  for  a  debt  due  to 
the  Crown  which  he  had  taken  from  Sir  Christopher 
Hatton.  By  way  of  insult,  Lord  Arundel  was  sent  to 
him  with  a  message  "  that  the  King  had  given  him  per- 
mission to  consult  with  eight  of  the  best  learned  in  the 
law  on  his  case."  But  he  returned  thanks  for  the  mon- 
arch's attention,  and  said  "  he  knew  himself  to  be  ac- 
counted to  have  as  much  skill  in  the  law  as  any  man  in 
England  ;  and,  therefore,  needed  no  such  help,  nor 
feared  to  be  judged  by  the  law  :  he  knew  his  Majesty 
might  easily  find  a  pretense  whereby  to  take  away  his 
head  ;  but  against  this  it  mattered  not  what  might  be 
said."1  His  confinement  was,  at  first,  so  rigorous,  that 
"  neither  his  children  or  servants  could  come  at  him  ;"" 
but  he  was  soon  allowed  to  send  for  his  law  books — ever 
his  chief  delight, — and  he  made  considerable  progress 
with  his  Commentary  on  Littleton,  which  now  engrossed 
all  his  thoughts. 

After  a  few  months'  confinement,  the  proceedings 
against  him  were  dropped ;  and  in  consequence  of  the 
intercession  of  Prince  Charles  he  was  set  at  liberty.* 
The  King,  however,  finally  struck  his  name  out  of  the 
list  of  Privy  Councillors,  and,  declaring  his  patriotism 
to  proceed  from  disappointed  ambition,  exclaimed  in 
spleen,  "  He  is  the  fittest  instrument  for  a  tyrant  that 
ever  was  in  England."4 

No  parliament  sitting  for  two  years,  Sir  Edward  Coke, 
during  this  interval,  remained  quiet  at  his  seat  at  Buck- 
inghamshire ;  but,  there  being  an  intention  of  calling  a 

1  D'Israeli's  James  I.,  126.  *  Roger  Coke. 

8  The  following  dialogue  is  said  to  have  passed  between  the  Prince  and 
the  King  on  this  occasion  : — P.  "  I  pray  that  your  Majesty  would  mercifully 
consider  the  case  of  Sir  Edward  Coke."  K.  "  I  know  no  such  man." 
P.  "  Perhaps  your  Majesty  may  remember  Mr.  Coke.  K.  "  I  know  no  such 
man.  By  my  saul,  there  is  one  Captain  Coke,  the  leader  of  the  faction  in 
parliament." — Sloam  MSS.  Feb.  2.  1621-22,  in  tJie  British  Museum. 

*  Wilson's  Life  of  James  I.,  IQI. 


1624.]  ED  WARD    COKE. 


329 


new  parliament,  he  was,  in  the  autumn  of  1623,  put  into 
a  commission  with  several  others,  requiring  them  to 
proceed  to  Ireland,  and  make  certain  inquiries  there, — a 
common  mode,  in  the  Stuart  reigns,  of  inflicting  banish- 
ment on  obnoxious  politicians.  He  had  formerly  com- 
plained of  this  abuse  of  the  royal  prerogative ;  but  on 
this  occasion  he  dexterously  said,  "  he  was  ready  to  con- 
form to  his  Majesty's  pleasure,  and  that  he  hoped  in  the 
sister  isle  to  discover  and  rectify  many  great  abuses." 
This  threat  so  alarmed  the  Court  that  he  was  allowed  to 
remain1  at  home.  Afterwards,  when  speaking  of  this 
practice,  he  said,  "  No  restraint,  be  it  ever  so  little,  but 
is  imprisonment ;  and  foreign  employment  is  a  sort  of 
honorable  banishment.  I  myself  was  designed  to  go  to 
Ireland  ;  I  was  willing  to  go,  and  hoped,  if  I  had  gone, 
to  have  found  some  Mompessons  there."1 

The  Spanish  match,  which  the  nation  so  much  dis- 
liked, having  been  suddenly  broken  off,  and  a  war  with 
Spain,  which  was  greatly  desired  in  England,  now  im- 
pending, a  sudden  change  arose  in  the  state  of  parties, 
and  for  a  time  a  reconciliation  was  effected  between 
Buckingham  and  the  leaders  of  the  Puritans.  To  court 
them,  he  even  went  so  far  as  to  encourage  schemes  for 
abolishing  the  order  of  bishops,  and  selling  the  dean 
and  chapter  lands  in  order  to  defray  the  expenses  of  the 
war. 

Under  these  circumstances  the  new  parliament  was 
called,  and  Sir  Edward  Coke  was  returned  for  Coventry, 
having  still  remained  Recorder  of  that  city,  and  kept  up 
a  friendly  intercourse  with  its  inhabitants.  At  the 
commencement  of  the  session  he  appeared  as  a  sup- 
porter of  the  Government,  and  he  declared  Buckingham 
to  be  the  "  savior  of  his  country."8 

He  deserves  much  credit  for  carrying  the  act  of  par- 
liament, which  is  still  in  force,  abolishing  monopolies, 
and  authorizing  the  Crown  to  grant  patents  securing  to 
inventors  for  a  limited  time  the  exclusive  exercise  of 
their  inventions  as  a  reward  for  their  genius  and  in- 
dustry.' 

1  Rushworth,  i.  523 ;  2  Parl.  Hist.  257. 

'Clarendon  says  with  great  spite,  "Sir  Edward  Coke  blasphemously 
called  him  OUR  SAVIOUR." — Hist.  vol.  i.  p.  9. 

8Stat.  21  James  I.  c.  3.     Hume  says,  "This  bill  was  conceived  in  sud 


330  REIGN    OF    JAMES    /.  [1624, 

The  most  exciting  proceeding  before  this  parliament 
•was  the  impeachment  of  Lionel  Cranfield,  Earl  of 
Middlesex,  with  whom  Buckingham  had  quarreled,  after 
having  made  him,  from  a  city  merchant,  Lord  High 
Treasurer  of  England.  He  was  charged  with  bribery 
and  other  malpractices  in  the  execution  of  his  office. 

Sir  Edward  Coke,  now  in  his  seventy-third  year, 
appeared  at  the  bar  of  the  House  of  Lords  as  chief  man- 
ager for  the  Commons.  After  a  somewhat  prolix  pre- 
amble respecting  impeachments  in  general,  he  said, — 

"  The  House  of  Commons  have  appointed  me  to  pre- 
sent three  enormities  to  your  Lordships,  much  against 
my  inclination,  other  Members  of  their  House  being  far 
more  sufficient,  as  well  in  regard  of  my  great  years,  as 
of  other  accidents ;  yet  I  will  do  it  truly,  plainly,  and 
shortly.  The  first  is  gross  and  sordid  bribery.  Here  I 
crave  favor  if  I  should  seem  tedious  in  some  particulars ; 
for  circumstances  to  things  are  like  shadows  to  pictures, 
to  set  them  out  in  fuller  representation."  His  long 
opening  he  at  last  concluded  in  these  words  : — "  All 
this  I  speak  by  command ;  I  pray  your  Lordships  to 
weigh  it  well  with  solemn  consideration,  and  to  give 
judgment  according  to  the  merits." 

The  noble  defendant  had  done  various  things,  as  head 
of  the  Treasury,  which  would  now  be  considered  very 
scandalous ;  but  he  had  only  imitated  his  predecessors, 
and  was  imitated  by  his  successors.  Yet  he  was  found 
guilty,  and  adjudged  "  to  lose  all  his  offices  which  he 
holds  in  this  kingdom  ;  to  be  incapable  of  any  office  or 
employment  in  future  ;  to  be  imprisoned  in  the  Tower 
during  the  King's  pleasure ;  to  pay  a  fine  of  £50,000 ; 
never  to  sit  in  parliament  any  more ;  and  never  to  come 
within  the  verge  of  the  Court."1 

At  the  close  of  the  session,  Sir  Edward  Coke  retired 
to  Stoke  Pogis,  and  there  occupied  himself  with  his 

terms  as  to  render  it  merely  declaratory ;  and  all  monopolies  were  con- 
demned as  contrary  to  law  and  to  the  known  liberties  of  the  people.  It 
was  then  supposed  that  every  subject  in  England  had  entire  power  to 
dispose  of  his  own  actions,  provided  he  did  no  injury  to  any  of  his  fellow 
subjects  ;  and  that  no  prerogative  of  the  King,  no  power  of  any  magistrate, 
nothing  but  the  authority  alone  of  the  laws,  could  restrain  that  unlimited 
freedom." — Vol.  vi.  p.  143. 

1  Lords'  Journals  ;  I  Parl.  Kist.  1411-1478. 


I62S-J  EDWARD     COKE.  331 

legal  studies  till  he  heard  of  the  death  of  James  I.,  in 
the  spring  of  the  following  year. 

He  immediately  came  to  his  house  in  Holborn  upon 
the  report  that  there  was  an  intention  to  reassemble  the 
old  parliament,  which  had  expired  with  the  King  who 
called  it ;  but  he  found  that,  although  Charles  had  ex- 
pressed a  wish  to  that  effect,  a  proclamation  soon  came 
out  for  the  election  of  a  new  parliament.  He  was  again 
returned  for  Coventry. 

At  the  commencement  of  the  session  his  demeanor 
was  marked  by  moderation.  He  entertained  good 
hopes  of  the  new  Sovereign,  and  was  resolved  to  give 
him  every  chance  of  a  quiet  and  prosperous  reign. 
Therefore,  on  the  first  day  of  business,  when  it  was  ex- 
pected that  he  would  move,  as  he  had  done  on  former 
occasions,  to  appoint  a  committee  for  grievances,  "  he 
moved  that  there  might  be  no  committee  for  grievances, 
because  this  was  the  very  beginning  of  the  new  King's 
reign,  in  which  there  can  be  no  grievances  as  yet."1 

However,  he  speedily  quarreled  with  the  Court ;  and 
when  the  motion  for  a  supply  was  made,  he  moved,  by 
way  of  amendment,  for  a  committee  to  inquire  into  the 
expenditure  of  the  Crown  ;  speaking  in  this  wise  : — 

"  Necessitas  affect  at  a,  invincibilis  et  improvida.  If 
necessity  comes  by  improvidence,  there  is  no  cause  to 
give.  No  King  can  subsist  in  an  honorable  estate  with- 
out three  abilities  : — I.  To  be  able  to  maintain  himself 
against  sudden  invasions.  2.  To  aid  his  allies  and  con- 
federates. 3.  To  reward  his  well-deserving  servants. 
But  there  is  a  leak  in  the  government,  whereof  these  are 
the  causes  : — Frauds  in  the  customs — new  invented 
offices  with  large  fees — old  unprofitable  offices  which 
the  King  might  justly  take  away  with  law,  love  of  his 
people,  and  his  own  honor — the  King's  household  out 
of  order — upstart  officers — voluntary  annuities  or  pen- 
sions which  ought  to  be  stopped  till  the  King  is  out  of 
debt  and  able  to  pay  them — costly  diet,  apparel,  build- 
ings, still  increase  the  leakage :  the  multiplicity  of 
forests  and  parks,  now  a  great  charge  to  the  King, 
might  be  drawn  into  great  profit  to  him.'" 

In  his  reply  he  said, — 

1  2  Parl.  Hist.  5.  •  Ibid.  H. 


332  REIGN    OF    CHARLES    I.  [1626. 

"  Two  leaks  would  drown  any  ship.  Solum  et  malum 
concilium,  is  a  bottomless  sieve.  An  officer  should  not 
be  citpidus  alienee  rei,parcus  sti<z.  Miser  a  servitus  est  ubi 
lex  vaga  aut  incognita.  Segrave,  Chief  Justice,  was 
sentenced  for  giving  sole  counsel  to  the  King  against 
the  commonwealth.  I  would  give  ;£iooo  out  of  my 
own  estate,  rather  than  grant  any  subsidy  now." 

The  committee  was  carried,  and  was  proceeding  so 
vigorously  in  the  inquiry  into  grievances,  that  the  King 
abruptly  dissolved  the  parliament. 

But  a  supply  being  soon  indispensable,  from  tire  ex- 
hausted state  of  the  exchequer,  a  new  parliament  was 
to  be  summoned,  and,  to  make  it  tractable,  the  notable 
expedient  was  invented  of  appointing  the  chief  oppo- 
sition leaders  sheriffs  of  counties,  upon  the  supposition 
that  they  would  thereby  be  disqualified  to  sit  in  the 
House  of  Commons.  The  ex-Chief  Justice  Coke,  now 
in  his  75th  year,  was  appointed  Sheriff  of  Buckingham- 
shire. Having  in  vain  petitioned  to  be  excused,  on 
account  of  his  age  and  the  offices  which  he  had  hereto- 
fore held  of  much  superior  dignity,  he  demurred  to 
taking  the  oath  usually  administered  to  sheriffs,  which 
had  remained  unchanged  since  Popish  times,  and  made 
the  sheriff  swear  to  "  seek  and  to  suppress  all  errors  and 
heresies  commonly  called  Lotteries."  "  This,"  he  ob- 
jected, "  would  compel  him  to  suppress  the  established 
religion,  since  Lollard  was  only  another  name  for  Pro- 
testant." The  Judges,  being  consulted,  unanimously 
resolved  that  this  part  of  the  oath  ought  to  be  omitted, 
"  because  it  is  required  by  statutes  which  are  repealed, 
having  been  intended  against  the  religion  now  pro- 
fessed, then  deemed  heresy."  He  likewise  excepted  to 
other  parts  of  the  oath  as  unauthorized  by  any  statute ; 
but  the  Judges  said  that  the  residue  of  the  oath,  having 
been  administered  divers  years  by  the  direction  of  the 
state,  might  be  continued  for  the  public  benefit ;  and 
the  Privy  Council  obliged  him  to  take  it.1 

Nevertheless,  not  only  without  bribe,  but  without  soli- 
citation, he  was  returned  to  the  House  of  Commons  by  his 
native  county  of  Norfolk.8  When  the  parliament  met,  a 

1  Cro.  Car.  26. 

*  In  his  own  language,  "sine  aliqua  motione  aut  petitione  inde  a  me  prsebitis." 


1626.]  EDWARD    COKE.  333 

message  from  the  King  was  (as  we  should  think,  most  ir- 
regularly and  unconstitutionally)  brought  down  from  the 
King  by  the  Chancellor  of  the  Exchequer,  "that  Sir  Ed- 
ward Coke,  being  Sheriff  of  Buckinghamshire,  was  re- 
turned one  of  the  knights  of  the  shire  for  the  county  of 
Norfolk,  wherefore  he  hoped  the  House  would  do  him 
the  right  as  to  send  out  a  new  writ  for  that  county." 
The  ground  chiefly  relied  upon  was,  that  by  a  statute 
then  in  force,  sheriffs  were  obliged  constantly  to  reside 
within  their  bailiwicks.1  The  House  referred  the  matter 
to  the  "  Committee  of  Elections  and  Privileges,"  who 
made  the  unsatisfactory  report,  "  that,  after  diligent 
search,  they  had  found  many  cases  pro  and  con  as  to  a 
high  sheriff  for  one  county  being  elected  to  represent 
another  in  parliament."  The  House  ordered  them  to 
make  further  search,  and  the  session  came  to  an  end 
without  any  decision.  Neither  he,  nor  any  of  the  other 
sheriffs  returned  to  the  House,  took  their  seats,  but  no 
fresh  writs  were  issued  to  elect  members  in  their  stead  ; 
and,  on  the  very  day  before  the  dissolution  (which,  in 
spite  of  their  exclusion,  took  place  in  anger,  amidst  vain 
attempts  to  obtain  the  redress  of  grievances),  it  was  "re- 
solved by  the  House  that  Sir  Edward  Coke,  standing  de 
facto  returned  a  member  of  that  House,  should  have  priv- 
ilege against  a  suit  in  Chancery  commenced  against  him 
by  the  Lady  Clare."  4 

He  performed  the  duties  of  Sheriff  in  a  very  exemplary 
manner ;  and  we  are  told  that,  when  the  assizes  came 
round,  he  rode  out  to  meet  the  Judges  at  the  head  of  a 
grand  cavalcade.  He  likewise  stood  behind  them  very 
worshipfully,  with  a  white  wand  in  his  hand.  Whether 
they  consulted  him,  either  publicly  or  privately,  on  any 
knotty  points  of  law  which  arose  before  them,  we  are  not 
informed ;  but,  at  a  pinch,  he  must  have  been  most  ser- 
viceable, although  he  used  to  say  "  If  I  am  asked  a  ques- 
tion of  common  law,  I  should  be  ashamed  if  I  could  not 
immediately  answer  it ;  but  if  I  am  asked  a  question  of 

1  This  is  repealed  by  3  Geo.  III.  c.  15, 

*  2  Parl.  Hist.  44-198.  The  law  is  now  settled  that  although  a  sheriff 
cannot  represent  his  own  county,  nor  any  place  within  it  for  which  he  makes 
out  the  precept,  he  may  represent  any  other  county,  and  even  a  town  within 
his  own  county  which  happens  to  be  a  county  of  itself. 


334  REIGN    OF    CHARLES    I.  [1628. 

statute  law,  I  should  be  ashamed  to  answer  it  without 
referring  to  the  statute  book." 

Charles,  for  a  time,  resorted  to  the  most  outrageous 
measures  of  internal  government,  as  if  parliaments  were 
never  to  meet  again.  He  raised  money  by  forced  loans 
and  benevolences  ;  he  arrogated  to  himself  the  power  of 
committing  to  prison,  without  specifying  any  offense  in 
the  warrant  of  commitment ;  he  induced  the  Judges  to 
decide  that  they  had  no  power  to  examine  such  commit- 
ments, or  to  admit  the  prisoners  to  bail  ;  preparatory  to 
the  pecuniary  imposition  of  ship-money,  he  required  the 
different  sea-ports  to  furnish  a  certain  number  of  ships  for 
his  service  at  their  own  expense;  and  he  billeted  soldiers 
on  those  who  refused  his  unlawful  demands  to  live  at 
free  quarters.  But,  having  engaged  in  a  war  with  France, 
through  the  wanton  caprice  of  Buckingham,  it  became 
indispensably  necessary,  in  the  beginning  of  the  year 
1628,  once  more  to  summon  the  great  council  of  the  na- 
tion. 

The  attempt  was  not  renewed  to  disqualify  Sir  Edward 
Coke,  as  a  parliament  man,  by  any  office  ;  and  such  was 
his  popularity,  that  he  was  returned  by  two  counties — 
Suffolk  and  Buckinghamshire.  He  elected  to  serve  for 
the  latter,  m  which  he  had  fixed  his  residence,  and  in 
which  he  was  now  regarded  with  veneration  almost 
amounting  to  idolatry. 

When  the  new  Parliament  assembled,  the  King  at- 
tempted to  daunt  the  members  who  he  thought  might 
be  troublesome,  by  saying  in  his  opening  speech — 

"  If  you  shall  not  do  your  duties  in  contributing  to  the 
necessities  of  the  state,  I  must,  in  discharge  of  my  con- 
science, use  those  other  means  which  God  hath  put  into 
my  hands,  in  order  to  save  that  which  the  follies  of  some 
particular  men  may  otherwise  put  in  danger :  take  not 
this  for  a  threatening,  for  I  scorn  to  threaten  any  but  my 
equals ;  but  as  an  admonition  from  him  who,  by  nature 
and  duty,  has  most  care  of  your  preservation  and  pros- 
perity." ' 

This  was,  indeed,  the  grand  crisis  of  the  English  con- 
stitution. Had  our  distinguished  patriots  then  quailed, 
parliaments  would  thenceforth  have  been  merely  the 

1  Rushworth,  i.  477. 


1628.]  EDWARD    COKE.  335 

subject  of  antiquarian  research,  or  perhaps  occasionally 
summoned  to  register  the  edicts  of  the  Crown.  But,  the 
House  of  Commons  having  begun  the  session  with  tak- 
ing the  sacrament  and  holding  a  solemn  fast,  on  the  very 
first  day  devoted  to  public  business  Sir  Edward  Coke 
sounded  the  charge : — 

"  Dum  tempus  habemus  bonum  operemur,  I  am  abso- 
lutely for  giving  supply  to  his  Majesty ;  yet  with  some 
caution.  To  tell  you  of  foreign  dangers  and  inbred 
evils,  I  will  not  do  it.  The  state  is  inclining  to  a  con- 
sumption, yet  not  incurable  ;  I  fear  not  foreign  enemies; 
God  send  us  peace  at  home.  For  this  disease  I  will 
propound  remedies ;  I  will  seek  nothing  out  of  my  own 
head,  but  from  my  heart,  and  out  of  acts  of  parliament. 
I  am  not  able  to  fly  at  all  grievances,  but  only  at  loans. 
Let  us  not  flatter  ourselves.  Who  will  give  subsidies, 
if  the  King  may  impose  what  he  will  ?  and  if,  after  par- 
liament, the  King  may  enhance  what  he  pleaseth?  I 
know  the  King  will  not  do  it.  I  know  he  is  a  religious 
King,  free  from  personal  vices ;  but  he  deals  with  other 
men's  hands,  and  sees  with  other  men's  eyes.  Will  any 
give  a  subsidy,  if  they  are  to  be  taxed  after  parliament 
at  pleasure  ?  The  King  cannot  lawfully  tax  any  by  way 
of  loans.  I  differ  from  them  who  would  have  this  of 
loans  go  amongst  grievances,  for  I  would  have  it  go 
alone.  I'll  begin  with  a  noble  record ;  it  cheers  me  to 
think  of  it, — 26  Edw.  III.  It  is  worthy  to  be  written  in 
letters  of  gold.  Loans  against  the  will  of  the  subject 
are  against  reason,  and  the  franchises  of  the  land ;  and 
they  desire  restitution.  What  a  word  is  that  franchise  ! 
The  lord  may  tax  his  villefti  high  or  low ;  but  it  is 
against,  the  franchises  of  the  land  for  freemen  to  be 
taxed  but  by  their  consent  in  parliament.  In  Magna 
Charta  it  is  provided  that  Nullus  liber  homo  capiatur, 
vel  imprisonctur,  aut  disseisetur  de  libcro  tencmcnto  suo, 
&c.,  nisi  per  legate  judicium  parium  suorum,  vel  per 
legem  terra;."  l 

The  first  grievance  specifically  brought  before  the 
House  was  the  decision  of  the  Judges  respecting  com- 
mitments by  the  King  and  Council  without  naming  any 
cause : 

1  2  ParL  Hist.  237. 


336  REIGN    OF    CHARLES    I.  [1628 

Sir  Edivard  Coke:  "This  draught  of  the  judgment 
will  sting  us,  quia  nulla  causa  fruit  ostentata, — '  being 
committed  by  the  command  of  the  King,  therefore  he 
must  not  be  bailed.'  What  is  this  but  to  declare  upon 
record  that  any  subject  committed  by  such  absolute 
command  may  be  detained  in  prison  forever?  What 
doth  this  tend  to  but  the  utter  subversion  of  the  choice, 
liberty,  and  right  belonging  to  every  free-born  subject 
in  this  kingdom?  A  parliament  brings  judges,  officers, 
and  all  men  into  good  order."  l 

He  carried  resolutions  which,  half  a  century  after, 
were  made  the  foundation  of  the  Habeas  Corpus  Act : — 

I.  "  That  no  freeman  ought  to  be  committed  or  de- 
tained in  prison,  or  otherwise  retained  by  command  of 
the  King  or  the  Privy  Council,  or  any  other,  unless  some 
cause  of  the  commitment,  detainer,  or  restraint  be  ex- 
pressed, for  which  by  law  he  ought  to  be  committed,  de- 
tained, or  restrained. 

II.  "  That  the  writ  of  Habeas  Corpus  cannot  be  de- 
nied, but  ought  to  be  granted  to  every  man  that  is  com- 
mitted or  detained  in  prison,  or  otherwise  restrained  by 
the  command  of  the   King,  the   Privy  Council,  or  any 
other."8 

While  he  attended  to  grievances  at  home,  he  was  by 
no  means  indifferent  to  the  honor  and  greatness  of  the 
country. 

Thus  he  spoke  in  the  debate  on  granting  a  supply  to 
enable  the  King  to  repel  foreign  aggression : — 

"  When  poor  England  stood  alone,  and  had  not  the 
access  of  another  kingdom,  and  yet  had  more  and  as  po- 
tent enemies  as  now,  yet  the  King  of  England  prevailed.' 

1  Ibid.  246.  Notwithstanding  this  violent  invective  against  the  doctrine 
that  persons  committed  by  the  King  could  not  be  liberated  by  the  Judges, 
it  would  appear  that  he  himself  when  on  the  bench  had  sanctioned  it.  The 
Lord  Chief  j  ustice  Hyde,  being  questioned  in  the  House  of  Lords  for  the 
late  decision  of  the  Court  of  King's  Bench  on  this  subject,  said,  "  If  we 
have  erred,  '  ermviinus  cum  Patribus,'  and  they  can  show  no  precedent  but 
that  our  predecessors  have  done  as  we  have  done — sometimes  bailing, 
sometimes  remitting,  sometimes  discharging.  Yet  we  do  never  bail  any 
committed  by  the  King  or  his  Council,  till  his  pleasure  be  first  known : 
c.tiii  thus  did  the  Lord  Chief  Justice  Coke  in  Raynard's  Case" — 2  ParJ. 
Hist.  292. 

•  2  Parl.  Hist.  259. 

8  "  Poor  England  !  thou  art  a  devoted  deer, 

Beset  with  every  ill  but  that  of  fear." — Cowfer. 


1628.]  EDWARD    COKE.  337 

In  the  parliament  roll,  4  Edw.  III.,  the  King  and  Par- 
liament gave  God  thanks  for  his  victory  against  the 
Kings  of  Scotland  and  France ;  he  had  them  both  in 
Windsor  Castle  as  prisoners.  In  3  Rich.  II.  the  King 
was  invironed  with  Flemings,  Scots,  and  French,  and 
the  King  of  England  prevailed.  In  13  Rich.  II.  the 
King  was  invironed  with  Spaniards,  Scots,  and  French, 
and  the  King  of  England  prevailed.  In  17  Rich.  II. 
wars  were  in  Ireland  and  Scotland,  and  yet  the  King  of 
England  prevailed :  thanks  were  given  to  God ;  and  I 
hope  I  shall  live  to  give  God  thanks  for  our  King's  vic- 
tories. But  to  this  end  the  King  must  be  assisted  by 
good  counsel.  In  7  Hen.  IV.  one  or  two  great  men 
about  the  King  mewed  him  up,  that  he  took  no  other 
advice  but  from  them  ;  whereupon  the  Chancellor  took 
this  text  for  the  theme  of  his  speech  in  parliament, 
'  Multorum  consilia  requiruntur  in  magnis  ;  in  bello  qui 
maxime  timent  sunt  in  maximis  periculis.'  Let  us  give, 
and  not  be  afraid  of  our  enemies ;  let  us  supply  bounti- 
fully, cheerfully,  and  speedily.  It  shall  never  be  said 
we  deny  all  supply ;  I  think  myself  bound  where  there 
there  is  commune  pericuhim,  there  must  be  commune 
auxiliumf 

Still  he  was  determined  that,  before  the  supply  was 
actually  given,  there  should  be  an  effectual  redress  of 
grievances.  He  therefore  framed  the  famous  PETITION 
OF  RIGHT.  This  second  MAGNA  CHARTA  enumerated 
the  abuses  of  prerogative  from  which  the  nation  had 
lately  suffered, — levying  forced  loans  and  benevolences, 
— unlawful  imprisonments  in  the  name  of  the  King  and 
the  Privy  Council — billeting  soldiers  to  live  at  free  quar- 
ters— with  various  other  enormities, — and,  after  de- 
claring them  all  to  be  contrary  to  former  statutes'and 
the  laws  and  customs  of  the  realm,  assumed  the  form  of 
an  act  of  the  Legislature,  and,  in  the  most  express  and 
stringent  terms,  protected  the  people  in  all  time  to  come 
from  similar  oppressions.  There  were  various  confer- 
ences upon  the  subject  between  the  two  Houses,  which 

1  2  Parl.  Hist.  255.  It  is  curious  to  observe  that  Coke  always  dates  his- 
torical events  by  the  year  of  a  king's  reign  ;  and  I  suspect  that  his  knowl- 
edge of  history  was  chiefly  drawn  from  poring  over  the  Statute  Book  and 
the  Rolls  of  Parliament. 


338  REIGN    OF    CHARLES    I.  [1628. 

were  chiefly  conducted  on  the  part  of  the  Commons  by 
Sir  Edward  Coke.  What  seems  very  strange  to  us, — 
the  Attorney  General  and  other  Crown  lawyers  were 
allowed  to  argue  against  the  Petition  at  the  bar,  as  coun- 
sel for  his  Majesty,  and  to  combat  its  positions  and 
enactments ;  but  they  were  completely  refuted  by  the 
ex-Chief  Justice,  who  not  only  had  reason  on  his  side, 
but  possessed  much  more  constitutional  law  and  vigor 
of  intellect  than  any  of  them,  or  all  of  them  put  to- 
gether. The  King,  afraid  of  the  impression  made  upon 
the  Lords,  sent  a  message  to  both  Houses,  expressing 
his  willingness  to  concede  them  a  bill  in  confirmation  of 
King  John's  MAGNA  CHARTA,  without  additions,  para- 
phrases, or  explanations ;  assuring  them  that  no  future 
occasion  of  complaint  should  arise.  Mr.  Secretary 
Cooke,  with  soft  and  honeyed  expressions,  moved  that 
the  House  should  be  content  with  the  King's  assurances ; 
and  many  members,  persuaded  by  his  rhetoric,  were  in- 
timating their  assent  to  waive  the  Petition  : — 

Sir  Edward  Coke  :  "  Was  it  ever  known  that  general 
words  were  a  satisfaction  to  particular  grievances  ?  Was 
ever  a  verbal  declaration  of  the  King  verbum  Regis  ? 
Where  grievances  be,  the  parliament  is  to  redress  them. 
Did  ever  parliament  rely  on  messages?  The  King's  An- 
swer is  very  gracious,  but  we  have  to  look  to  the  law  of 
the  realm.  I  put  no  diffidence  in  his  Majesty,  but  the 
King  must  speak  by  record  ;  and  in  particulars,  not  in 
generals.  Did  you  ever  know  the  King's  message  to 
come  into  a  bill  of  subsidies  ?  All  succeeding  kings  will 
say,  '  Ye  must  trust  me  as  well  as  ye  did  my  predecessor, 
and  give  faith  to  my  messages.'  But  messages  of  love 
have  no  lasting  endurance  in  parliament.  Let  us  put  up 
a  PETITION  OF  RIGHT.  Not  that  I  distrust  the  King, 
but  I  cannot  take  his  trust  save  in  a  parliamentary 
way."  * 

The  Commons  resolved  that  they  would  proceed  ;  and 
the  Lords  passed  the  bill,  but  were  prevailed  upon  by 
the  courtiers  to  add  a  proviso,  which  would  have  com- 
pletely nullified  its  operation,  "  that  nothing  therein 
contained  should  be  construed  to  entrench  on  the  sove- 
reign power  of  the  Crown."  The  bill  coming  back  to 

1  2  Parl.  Hist.  348  ;  Rushworth,  i.  558. 


1628.]  EDWARD     COKE.  339 

the  House  of  Commons  for  their  concurrence  in  the 
amendment,  Sir  Edward  Coke  said, — 

"  This  is  magnum  in  parvo.  It  is  a  matter  of  great 
weight,  and,  to  speak  plainly,  it  will  overthrow  all  our 
PETITION  ;  it  trenches  on  all  parts  of  it ;  it  flies  at  loans, 
at  imprisonment,  and  at  billeting  of  soldiers.  This  turns 
all  about  again.  Look  into  all  the  petitions  of  former 
times ;  the  assenting  answer  to  them  never  contained  a 
saving  of  the  King's  sovereignty.  I  know  that  preroga- 
tive is  part  of  the  law,  but  '  sovereign  power'  is  no  par- 
liamentary word.  In  my  opinion,  it  weakens  Magna 
Charta  and  all  the  statutes  whereon  we  rely  for  the  de- 
claration of  our  liberties  ;  for  they  are  absolute  without 
any  saving  of  'sovereign  power.'  Should  we  now  add  it, 
we  shall  weaken  the  foundation  of  the  lav/,  and  then  the 
building  must  fall.  .If  we  grant  this  by  implication  we 
give  a  '  sovereign  power'  above  all  laws.  '  Power'  in  law, 
is  taken  fa*  a  power  with  force  :  the  sheriff  shall  take  the 
power  of  the  county.  What  it  means  here,  God  only 
knows.  It  is  repugnant  to  our  PETITION.  This  is  a 
PETITION  OF  RIGHT  granted  on  acts  of  parliament,  and 
the  laws  which  we  were  born  to  enjoy.  Our  ancestors 
could  never  endure  a  salvo  jure  suo  from  Kings — no  more 
than  our  Kings  of  old  could  endure  from  churchmen 
salvo  honore  Dei  et  Ecclesitz.  We  must  not  admit  it,  and 
to  qualify  it  is  impossible.  Let  us  hold  our  privileges 
according  to  law.  That  power  which  is  above  the  law, 
is  not  fit  for  the  King  to  ask,  or  the  people  to  yield. 
Sooner  would  I  have  the  prerogative  abused,  and  my- 
self to  lye  under  it ;  for  though  I  should  suffer,  a  time 
would  come  for  the  deliverance  of  the  country."  ' 

The  amendment  was  rejected  by  the  Commons ;  a.nd, 
after  several  conferences,  the  Lords  agreed  "  not  to  in- 
sist upon  it."  Thereupon  the  Commons  sent  a  message 
to  the  Lords  by  Sir  Edward  Coke — 

"  To  render  thanks  to  their  Lordships  for  their  noble 
and  happy  concurrence  with  them  alj  this  parliament;  to 
acknowledge  that  their  Lordships  had  not  only  dealt 
nobly  with  them  in  words,  but  also  in  deeds  ;  that  this 
petition  contained  the  true  liberties  of  the  subjects  of 
England,  and  their  Lordships  concurring  with  the  Cora- 

1  2  ParL  Hist  357. 


340  REIGN    OF    CHARLES    I.  [1628, 

mons  had  crowned  the  work ;  that  this  parliament  might 
be  justly  styled  '  PARLIAMENTUM  BENEDICTUM ;'  and  to 
ask  the  Lords  to  join  in  beseeching  his  Majesty,  for  the 
comfort  of  his  loving  subjects,  to  give  a  gracious  an- 
swer." ' 

Buckingham  would  not  venture  to  advise  a  direct  "veto 
by  the  words  "  Le  Roy  s'avisera"  but  framed  the  follow- 
ing evasive  and  fraudulent  answer : — 

"  The  King  willeth  that  right  be  done  according  to  the 
laws  and  customs  of  the  realm ;  and  that  the  statutes  be 
put  in  due  execution,  that  his  subjects  may  have  no 
cause  to  complain  of  any  wrongs  or  oppressions  contrary 
to  their  just  rights  and  liberties,  to  the  preservation 
whereof  he  holds  himself  in  conscience  as  well  obliged  as 
of  his  own  prerogative."  a 

The  Commons  returned  to  their  chamber  in  a  rage; 
and  Speaker  Finch,  the  devoted  tool  of  the  Court,  seeing 
their  excited  condition,  exclaimed,  "  I  am  commanded 
to  interrupt  any  member  who  shall  asperse  a  minister  of 
state."  Nevertheless,  Sir  Edward  Coke  rose,  but  ac- 
cording to  Rushworth,  "  overcome  with  passion,  seeing 
the  desolation  likely  to  ensue,  he  was  forced  to  sit?  when 
he  began  to  speak,  through  the  abundance  of  tears." 
The  veteran  statesman,  having  in  some  measure  recovered 
his  self-command,  thus  proceeded  : — 

"  I  now  see  that  God  has  not  accepted  of  our  humble 
and  moderate  carriages  and  fair  proceedings  ;  and  the 
rather,  because  I  fear  they  deal  not  sincerely  with  the 
King  and  with  the  country  in  making  a  free  representa- 
tion of  all  these  miseries.  I  repent  myself,  since  things 
are  come  to  pass,  that  I  did  not  sooner  declare  the  whole 
truth  ;  and  not  knowing  whether  I  shall  ever  speak  in 
this  house  again,  I  will  do  it  now  freely.  We  have  dealt 
with  that  duty  and  moderation  that  never  was  the  like 
after  such  a  violation  of  the  liberties  of  the  subject. 
What  shall  we  do  ?  Let  us  palliate  no  longer:  if  we  do, 
God  will  not  prosper  us.  I  think  the  Duke  of  Bucks  is 
the  cause  of  our  miseries,  and,  till  the  King  be  informed 
thereof,  we  shall  never  go  out  with  honor  or  sit  with 
honor  here.  That  man  is  the  grievance  of  grievances. 
Let  us  set  down  the  causes  of  our  disasters,  and  they 

1  2  Parl.  Hist.  372.  »  Ibid.  377. 


2628.]  EDWARD    COKE.  341 

will  all  reflect  upon  him.  It  is  not  the  King,  but  the 
Duke."— Cries,  "  'tis  he  !"  "  'tis  he  !" 

Rushworth  adds,  "This  was  entertained  and  answered 
with  a  full  acclamation  of  the  House, — as  when  one 
good  hound  recovers  the  scent,  the  rest  come  in  with 
full  cry."1 

The  Lords  and  Commons  agreed  upon  a  joint  address 
to  the  King,  which  was  delivered  to  him  sitting  on  the 
throne,  saying  that,  "with  unanimous  consent,  they  did 
become  humble  suitors  unto  his  Majesty,  that  he  would 
be  pleased  to  give  a  clear  and  satisfactory  answer  to 
their  PETITION  OF  RIGHT."  The  King  said  that  "  he 
intended  by  his  former  answer  to  give  them  full  satisfac- 
tion, but  that,  to  avoid  all  ambiguous  interpretations, 
he  was  willing  to  please  them  as  well  in  words  as  in  sub- 
stance." 

The  petition  being  now  read, — by  his  desire  the  clerk, 
in  the  usual  form  in  which  the  royal  assent  is  given  to 
bills,  said,  "  Soit  droit  fait  come  il  est  desir6;"  and  the 
PETITION  OF  RIGHT  became  a  statute  of  the  realm.* 
There  is  an  entry  in  the  Journals  stating,  "  When  these 
words  were  spoken,  the  commons  gave  a  great  and  joy- 
ful applause,  and  his  Majesty  rose  and  departed."  In 
the  evening  there  were  bonfires  all  over  London,  and 
the  whole  nation  was  thrown  into  a  transport  of  joy. 

The  PETITION  OF  RIGHT  might  have  led  to  a  quiet 
and  prosperous  reign  ;  but,  being  recklessly  violated, 
before  many  years  elapsed  a  civil  war  raged  in  the  king- 
dom, and  the  dethroned  King  lost  his  life  on  the  scaf- 
fold. 

The  Commons  performed  their  part  of  the  engage- 
ment, for  they  immediately  read  a  third  time,  and 
passed,  a  bill  to  grant  five  subsidies  to  the  King;  and 
having  ordered  Sir  Edward  Coke  to  carry  it  to  the 
Lords,  almost  the  whole  House  accompanied  him  thither, 
in  token  of  their  gratitude  and  good-will  to  his  Majesty. 

This  good  understanding  was  momentary,  for  the 
King  still  insisted  that  he  had  a  right  to  levy  tonnage 
and  poundage  by  his  own  authority ;  and  when  the 
House  of  Commons  was  preparing  a  remonstrance 

1  Rushworth,  i.  609  ;  Whitelock,  p.  10  ;  2  Parl.  Hist  410. 
*  Charles  I.  ch.  i 


342  REIGN    OF    CHARLES    I.  [1629— 

against  this  illegal  proceeding,  he  suddenly  put  an  end 
to  the  session  by  a  prorogation,  saying,  "  The  profession 
of  both  Houses  in  the  time  of  hammering  your  PETI- 
TION was,  that  you  nowise  trenched  upon  my  preroga- 
tive. Therefore,  it  must  needs  be  that  I  have  thereby 
granted  you  no  new  power,  but  only  confirmed  the  an- 
cient liberties  of  my  subjects."  He  then  resorted  to  the 
dishonorable  expedient  of  circulating  copies  of  the  PE- 
TITION OF  RIGHT,  with  the  first  answer  \\hich  he  had 
given  to  it,  and  he  insisted  that  his  prerogatives  were  in 
all  respects  the  same  as  before  this  parliament  was  called, 
so  that  the  right  to  levy  tonnage  and  poundage  was 
inalienably  vested  in  the  Crown. 

Sir  Edward  Coke,  although  deprived  of  office,  and 
still  excluded  from  the  Privy  Council,  may  be  considered 
as  having  reached  the  zenith  of  his  fame.  Not  only  was 
he  admired  as  a  statesman  and  a  patriot,  but  he  now 
secured  to  himself  the  station  which  he  has  ever  since 
continued  to  occupy,  as  the  greatest  expounder  of  the 
common  law  of  England,  by  giving  to  the  world  his 
"  Commentary  on  Littleton,"  which  had  been  his  labori- 
ous occupation  for  many  years.  Although  the  first  edi- 
tion abounded  with  errors  of  the  press,  the  value  of  the 
book  was  at  once  recognized,  and  he  received  testimonies 
in  its  praise  which  should  have  made  him  rejoice  that 
he  had  not  been  wearing  away  his  life  in  the  dull  dis- 
charge of  judicial  duties. 

Parliament  again  met  in  the  beginning  of  the  follow- 
ing year,  but  Sir  Edward  Coke's  name  is  not  mentioned 
in  the  proceedings  of  the  short  session  which  was  then 
held,  except  once,  when  the  Speaker  was  directed  to 
write  to  him  to  request  his  attendance.1  No  explana- 
tion is  given  of  the  cause  of  his  absence,  and,  as  he  con- 
tinued at  bitter  enmity  with  the  Court,  he  was  probably 
detained  in  the  country  by  illness.  We  may  conjecture 

1  Journals,  nth  Feb.  1629.  "In  respect  that  the  term  ends  to-morrow, 
and  the  assizes  to  follow,  and  divers  members  that  are  lawyers  of  this 
House  may  be  gone,  it  is  ordered  that  none  shall  go  forth  of  town  without 
the  leave  of  the  House.  Ordered  also  that  the  Speaker's  letter  shall  be  sent 
for  Sir  Edward  Coke." — z  Parl.  Hist.  463.  They  wanted  his  assistance  in 
the  debate  on  the  claim  of  the  King  to  levy  tonnage  and  poundage  without 
the  authority  of  parliament.  The  same  day  Oliver  Cromwell  made  his 
maiden  speech,  in  which  he  denounced  a  sermon  delivered  at  Paul's  Cross 
as  "  flat  popery." 


1634.]  EDWARD     COKE.  343 

the  resentful  tone  in  which  he  would  have  exposed  the 
violation  of  the  PETITION  OF  RIGHT,  and  the  prominent 
part  which  he  would  have  taken  in  the  famous  scene  in 
the  House  of  Commons  immediately  before  the  dissolu- 
tion, when  Speaker  Finch  was  held  down  in  the  chair 
while  resolutions  were  carried  asserting  the  privileges  of 
the  House. 

By  his  absence  he  had  the  good  luck  to  escape  the 
imprisonment  inflicted  on  Sir  John  Eliot,  Hollis,  and 
the  other  popular  leaders,  who  were  afterwards  convicted 
in  the  Court  of  King's  Bench  of  a  misdemeanor,  for  what 
they  had  done  as  members  of  the  House  of  Commons. 

He  appeared  in  public  no  more.  Although  he  sur- 
vived six  years,  no  other  parliament  was  called  till  his 
remains  had  mouldered  into  dust.  Charles  had  resolved 
to  reign  by  prerogative  alone,  and  was  long  able  to 
trample  upon  public  liberty,  till  the  day  of  retribution 
arrived. 

The  first  months  of  Coke's  retirement  were  devoted 
to  the  publication  of  a  new  edition  of  his  Commentary 
on  Littleton,  which  was  the  most  accurate  and  valuable 
till  the  thirteenth,  given  to  the  world  in  the  end  of  the 
last  century  by  those  very  learned  lawyers  Hargrave  and 
Butler.  We  have  scanty  information  respecting  his  occu- 
pations, and  the  incidents  which  befell  him,  till  the  closing 
scenes  of  his  life.  He  continued  to  reside  constantly  at 
Stoke  Pogis.  He  was  never  reconciled  to  Lady  Hatton, 
who,  there  is  reason  to  fear,  grumbled  at  his  longevity. 
Mr.  Garrard,  in  a  letter,  written  in  the  year  1633,  to 
Lord  Deputy  Strafford,  says,  "  Sir  Edward  Coke  was 
said  to  be  dead,  all  one  morning  in  Westminster  Hall, 
this  term,  insomuch  that  his  wife  got  her  brother,  the 
Lord  Wimbledon,  to  post  with  her  to  Stoke,  to  get  pos- 
session of  that  place ;  but  beyond  Colebrook  they  met 
with  one  of  his  physicians  coming  from  him,  who  told  her 
of  his  much  amendment,  which  made  them  also  return 
to  London ;  some  distemper  he  had  fallen  into  for  want 
of  sleep,  but  is  now  well  again."1 

Till  a  severe  accident  which  he  met  with,  he  had  con- 
stantly refused  "  all  dealings  with  doctors  ;"  and  "  he 
was  wont  to  give  God  s'olemn  thanks  that  he  never  gave 

1  Strafford's  Letters  and  Dispatches,  i.  265. 


344  REIGN    OF    CHARLES    I.  [1629— 

his  body  to  physic,  nor  his  heart  to  cruelty,  nor  his  hand 
to  corruption."1  When  turned  of  eighty,  and  his 
strength  declining  rapidly,  a  vigorous  attempt  was 
made  to  induce  him  to  take  medical  advice  ;  of  this 
we  have  a  lively  account  in  a  letter  from  Mr.  Mead  to 
Sir  Martin  Stuteville  : — 

"  Sir  Edward  Coke  being  now  very  infirm  in  body,  a 
friend  of  his  sent  him  two  or  three  doctors  to  regulate 
his  health,  whom  he  told  that  he  had  never  taken  physic 
since  he  was  born,  and  would  not  now  begin  ;  and  that 
he  had  now  upon  him  a  disease  which  all  the  drugs  of 
Asia,  the  gold  of  Africa,  nor  all  the  doctors  of  Europe 
could  cure — old  age.  He  therefore  both  thanked  them 
and  his  friend  that  sent  them,  and  dismissed  them  nobly 
with  a  reward  of  twenty  pieces  to  each  man."2 

Of  his  accident,  which  in  the  first  instance  produced 
no  serious  effects,  there  is  the  following  account  entered 
by  hini  in  his  diary,  in  the  same  firm  and  clear  hand 
which  he  wrote  at  thirty : — 

"  The  3d  of  May,  1632,  riding  in  the  morning  in 
Stoke,  between  eight  and  nine  o'clock  to  take  the  air, 
my  horse  under  me  had  a  strange  stumble  backwards 
and  fell  upon  me  (being  above  eighty  years  old),  where 
my  head  lighted  near  to  sharp  stubbles,  and  the  heavy 
horse  upon  me.  And  yet  by  the  providence  of  Al- 
mighty God,  though  I  was  in  the  greatest  danger,  yet  I 
had  not  the  least  hurt,  nay,  no  hurt  at  all.  For  Al- 
mighty God  saith  by  his  prophet  David,  '  the  angel  of 
the  Lord  tarrieth  round  about  them  that  fear  him,  and 
delivereth  them,  et  nomen  Domini  benedictum,  for  it  'vas 
his  work." 

But  he  had  received  some  internal  injury  by  his  fall, 
and  from  this  time  he  was  almost  constantly  confined  to 
the  house.  His  only  domestic  solace  was  the  company 
of  his  daughter,  Lady  Parbeck,  whom  he  had  forgiven 
— probably  from  a  consciousness  that  her  errors  might 
be  ascribed  to  his  utter  disregard  of  her  inclinations 
when  he  concerted  her  marriage.  She  continued  piously 
to  watch  over  him  till  his  death.* 

1  Lloyd's  State  Worthies,  ii.  112.  * 

1  Harleian  MS.  '390.  fol.  534  ;  Ellis  Papers,  iii.  263. 

*  Extract  of  letter  from  Mr.  Gerrard  to  Lord  Deputy  Strafford,  dated 


1634.]  EDWARD     COKE.  345 

His  law  books  were  still  his  unceasing  delight ;  and 
he  now  wrote  his  SECOND,  THIRD,  and  FOURTH  IN- 
STITUTES, which,  though  very  inferior  to  the  FIRST,  are 
wonderful  monuments  of  his  learning  and  industry. 

On  one  occasion,  without  his  privity,  his  name  was 
introduced  in  a  criminal  prosecution.  A  person  of  the 
name  of  Jeffes,  who  seems  to  have  been  insane,  fixed  a 
libel  on  the  great  gate  of  Westminster  Hall,  asserting 
the  judgment  of  Sir  Edward  Coke,  when  Chief  Justice 
of  the  King's  Bench,  in  the  case  of  Magdalen  College,1 
to  be  treason,  calling  him  traitor  and  perjured  Judge, 
and  scandalizing  all  the  profession  of  the  law.  The 
Government  thought  that  this  was  an  insult  to  the 
administration  of  justice  not  to  be  passed  over,  and 
directed  that  the  offender  should  be  indicted  in  the 
Court  of  King's  Bench.  Had  he  been  brought  before 
the  Star  Chamber  he  could  hardly  have  been  more 
harshly  dealt  with,  for  he  was  sentenced  to  stand  twice 
in  the  pillory,  to  be  carried  round  all  the  courts  in  West- 
minster Hall  with  a  descriptive  paper  on  his  breast,  to 
make  submission  to  every  court  there,  to  pay  a  fine  of 
.£1000,  and  to  find  sureties  for  his  good  behavior  during 
the  remainder  of  his  life.1 

This  proceeding  was  not  prompted  by  any  kindness 
for  the  ex-Chief  Justice  ;  on  the  contrary,  he  was  looked 
upon  with  constant  suspicion,  and  the  Government  was 
eagerly  disposed  to  make  him  the  subject  of  prosecu- 
tion. Buckingham  had  fallen  by  the  hand  of  an  assassin, 
but  his  arbitrary  system  of  government  was  strenuously 
carried  on  by  Laud  and  those  who  had  succeeded  to 
power ;  taxes  were  levied  without  authority  of  Parlia- 
ment ;  illegal  proclamations  were  issued,  to  be  enforced 
in  the  Star  Chamber ;  and  Noy's  device  of  ship-money 
was  almost  mature.  Sir  Edward  Coke  having  then  re- 
sided in  the  same  county  with  Hampden,  and  at  no 

1 7th  of  March,  1636  : — "  Here  is  a  new  business  revived  ;  your  Lordship 
hath  heard  of  a  strong  friendship  heretofore  betwixt  Sir  Robert  Howard 
and  the  Lady  Parbeck,  for  which  she  was  called  into  the  High  Commission, 
and  there  sentenced  to  stand  in  a  white  sheet  in  the  Savoy  Church,  which 
she  avoided  then  by  flight,  and  hath  not  been  much  looked  after  since, 
having  lived  much  out  of  town,  and  constantly  these  last  two  years  with  her 
father  at  Stoke."  He  afterwards  goes  on  to  give  an  account  of  her  im- 
prisonment in  the  Gatehouse,  and  her  escape  in  the  disguise  of  a  page. 
1  ii  Rep.  66.  f  Cro.  Car.  175. 


346  REIGN    OF    CHARLES    I.  [1634. 

great  distance  from  him, — it  is  conjectured,  without  any 
positive  evidence,  that  they  consulted  together  as  to  the 
manner  in  which  the  law  and  the  constitution  might  be 
vindicated.  So  much  is  certain,- — that,  from  secret  in- 
formation which  the  Government  had  obtained,  Sir 
Francis  Windebank,  the  Secretary  of  State,  by  order  of 
the  King  and  Council,  came  to  Stoke  on  the  1st  of  Sep- 
tember, 1634,  attended  by  several  messengers,  to  search 
for  seditious  papers,  and,  if  any  were  found,  to  arrest 
the  author. 

On  their  arrival  they  found  Sir  Edward  Coke  on  his 
death-bed.  They  professed  that  they  would,  under 
these  circumstances,  offer  him  no  personal  annoyance ; 
but  they  insisted  on  searching  every  room  in  the  house 
except  that  in  which  he  lay,  and  they  carried  away  all 
the  papers,  of  whatever  description,  which  they  could 
lay  their  hands  upon.  Among  these  were  the  original 
MS.  from  which  he  had  printed  the  Commentary  on 
Littleton  ;  the  MS.  of  his  Second,  Third,  and  Fourth 
Institutes,  his  last  will,  and  many  other  papers  in  his 
handwriting.1 

It  is  believed  that  Sir  Edward  Coke  remained  ignorant 
of  this  outrage,  and  that  his  dying  moments  were  undis- 
turbed. He  had  been  gradually  sinking  for  some  time, 
and  on  the  3d  of  Sept.,  1634,  he  expired,  in  the  eighty- 
third  year  of  his  age  ;  enjoying  to  the  last  the  full  pos- 
session of  his  mental  powers,  and  devoutly  ejaculating, 
"Thy  kingdom  come  !  Thy  will  be  done!" 

His  remains  were  deposited  in  the  family  burying- 
place  at  Titleshall,  in  Norfolk,  where  a  most  magnificent 
marble  monument  has  been  erected  to  his  memory,  with 

1  There  is  now  extant,  in  the  library  at  Lambeth,  the  original  inventory 
of  these  papers,  entitled  "  A  catalogue  of  Sir  Edward  Coke's  papers,  that  by 
•warrant  from  the  Council  were  brought  to  Whitehall,  whereon  his  Majesty's 
pleasure  is  to  be  known,  which  of  them  shall  remain  there."  It  begins, 
"  A  wanscott  box,  of  his  arms,  accounts  and  revenues."  The  house  in  Hoi- 
born  had  been  searched  and  rifled  at  the  same  time,  for  there  is  in  the 
library  at  Lambeth  another  inventory,  entitled  "  A  note  of  such  things  as 
were  found  in  a  trunk  taken  from  Pepys,  Sir  Edward  Coke's  servant,  at 
London,  brought  to  Bagshot  by  his  Majesty's  commandment,  and  then 
broken  up  by  his  Majesty,  gth  of  September,  1634."  Among  the  items  is 
"  One  paper  of  poetry  to  his  children."  This  may  have  been  the  poetical 
version  of  his  Reports  ;  of  which  I  will  afterwards  give  a  specimen.  The 
will  was  destroyed  or  lost,  to  the  great  prejudice  of  the  family.  The  law 
MSS.,  as  we  shall  see,  were  returned  by  order  of  the  Long  Parliament. 


1634.]  EDWARD     COKE.  347 

a  very  long  inscription,  of  which  the  following  will  prob- 
ably be  considered  a  sufficient  specimen : — 

"  Quique  dum  vixit,  Bibliotheca  viva, 
Mortuus  dici  meruit  Bibliothecse  parensX 
Duodecem  Liberorum,  tredecim  liborum  Pater." 

For  the  benefit  of  the  unlearned,  there  is  another  in- 
scription in  the  vulgar  tongue  ;  which,  after  pompously 
describing  his  life  and  death,  thus  edifyingly  con- 
cludes,— 

"  Learne  READER  to  live  so,  that  thou  mayst  so  die." 

In  drawing  his  character  I  can  present  nothing  to  cap- 
tivate or  to  amuse  Although  he  had"received  an  academ- 
ical eduction,  his  mind  was  wholly  unimbued  with  liter- 
ature or  science ;  and  he  considered  that  a  wise  man 
could  not  reasonably  devote  himself  to  anything  except 
law,  politics,  and  industrious  money-making.  He  values 
the  father  of  English  poetry  only  in  as  far  as  the  "  Canon's 
Yeoman's  Tale"  illustrates  the  statute  5  Hen.  IV.  c.  4. 
against  Alchymy,  or  the  craft  of  multiplication  of  metals  ; 
— and  he  classes  the  worshiper  of  the  Muses  with  the 
most  worthless  and  foolish  of  mankind  : — "  The  fatal  end 
of  these  five  is  beggary, — the  alchemist,  the  monopotext, 
the  concealer,  the  informer,  and  the  poetaster. 

"  Saepe  pater  dixit,  studium  quid  inutile  tentas  ? 
Maeonides  nullas  ipse  reliquit  opes."  l 

He  shunned  the  society  of  Shakspeare  and  Ben  Johnson, 
as  of  vagrants  who  ought  to  be  set  in  the  stocks,  or  whip- 
ped from  tithing  to  tithing.  The  Bankside  Company 
having,  one  summer,  opened  a  theater  at  Norwich,  while 
he  was  Recorder  of  that  city,  in  his  next  charge  to  the 
grand  jury  he  thus  launched  out  against  them  : — 

"  I  will  request  that  you  carefully  put  in  execution  the 
statute  against  -vagrants ;  since  the  making  whereof,  I 
have  found  fewer  thieves,  and  the  jail  less  pestered  than 
before.  The  abuse  of  stage  players,  wherewith  I  find  the 
country  much  troubled,  may  easily  be  reformed,  they 
having  no  commission  to  play  in  any  place  without 
leave  ;  and  therefore,  if  by  your  willingness  they  be  not 
entertained,  you  may  soon  be  rid  of  them."1 

1  3  Institute,  74. 

1  It  is  suppoeed  to  have  been  out  of  revenge  for  this  charge,  that  Shak 


348  REIGN    OF    CHARLES    I.  [1634. 

His  progress  in  science  we  may  judge  of  by  his  dog- 
matic assertion  that  "  the  metals  are  six,  and  no  more — 
gold,  silver,  copper,  tin,  lead,  and  iron  ;  and  they  all 
proceed  originally  from  sulphur  and  quicksilver,  as  from 
their  father  and  mother."  ' 

He  is  charged  by  Bacon  with  talking  a  great  deal  in 
company,  and  aiming  at  jocularity  from  the  bench  ;  but 
he  associated  chiefly  with  dependents,  who  worshiped 
him  as  an  idol ;  and  the  only  jest  of  his  that  has  come 
down  to  us  consoles  us  for  the  loss  of  all  the  rest : — 
COWELL'S  INTERPRETER  being  cited  against  an  opinion 
he  had  expressed  when  Chief  Justice,  he  contemptuously 
called  the  learned  civilian  Dr.  Cow-heel:1 

Yet  we  are  obliged  to  regard  a  man  with  so  little  about 
him  that  is  ornamental,  or  entertaining,  or  attractive,  as 
a  very  considerable  personage  in  the  history  of  his  coun- 
try. Belonging  to  an  age  of  gigantic  intellect  and 
gigantic  attainments,  he  was  admired  by  his  con- 
temporaries, and  time  has  in  no  degree  impaired  his 
fame.  For  a  profound  knowledge  of  the  common  law 
of  England,  he  stands  unrivaled.  As  a  Judge,  he 
was  not  only  above  all  suspicion  of  corruption,  but,  at 
every  risk,  he  displayed  an  independence  and  dignity  of 
deportment  which  would  have  deserved  the  highest 
credit  if  he  had  held  his  office  during  good  behavior,  and 
could  have  defied  the  displeasure  of  the  Government.  To 
his  exertions  as  a  parliamentary  leader,  we  are  in  no 
small  degree  indebted  for  the  free  constitution  under 
which  it  is  our  happiness  to  live.  He  appeared  oppor- 
tunely at  the  commencement  of  the  grand  struggle  be- 
tween the  Stuarts  and  the  people  of  England.  It  was 
then  very  doubtful  whether  taxes  were  to  be  raised  with- 
out the  authority  of  the  House  of  Commons ;  and  wheth- 
er, parliaments  being  disused,  the  edicts  of  the  King 
were  to  have  the  force  of  law.  There  were  other  public- 
spirited  men,  who  were  ready  to  stand  up  in  defense  of 

speare  parodied  his  invective  against  Sir  Walter  Raleigh,  in  the  challenge 
of  Sir  Andrew  Aguecheek. — See  Boswell's  Shakspeare,  ii.  442. 

1  3  Inst.  ch.  xx. 

*  Cowell  had  given  great  offense  by  asserting  that  the  King  was  not  bound 
by  the  laws,  insomuch  that  by  order  of  the  House  of  Commons  he  was  com- 
mitted to  custody,  and  his  book  was  publicly  burnt. —  Wilson  Memor.  Can  fa 
trig.  p.  60. 


ED  WARD    COKE.  349 

freedom ;  but  Coke  alone,  from  his  energy  of  character, 
and  from  his  constitutional  learning,  was  able  to  carry  the 
PETITION  OF  RIGHT ;  and  upon  his  model  were  formed 
Pym  and  the  patriots  who  vindicated  that  noble  law  on 
the  meeting  of  the  Long  Parliament. 

He  is  most  familiar  to  us  as  an  author.  Smart  legal 
practitioners,  who  are  only  desirous  of  making  money 
by  their  profession,  neglect  his  works,  and  sneer  at  them 
as  pedantic  and  antiquated  ;  but  they  continue  to  be 
studied  by  all  who  wish  to  know  the  history,  and  to  ac- 
quire a  scientific  and  liberal  knowledge  of  .our  juridical 
and  political  institutions. 

I  have  already  mentioned  his  REPORTS,  the  first 
eleven  parts  of  which  he  composed  and  published  amidst 
his  laborious  occupations  as  Attorney  General  and  Chief 
Justice.  The  twelfth  and  thirteenth  parts  were  among 
the  MSS.  seized  by  the  Government  when  he  was  on 
his  death-bed.  In  consequence  of  an  address  by  the 
House  of  Commons  to  the  King  on  the  meeting  of  the 
Long  Parliament,  seven  years  after,  they  were  restored 
to  his  family,  and  printed.  Although  inferior  in  accu- 
racy to  their  predecessors,  they  were  found  to  contain 
many  important  decisions  on  political  subjects,  which  he 
had  not  ventured  to  give  to  the  world  in  his  life-time.1 

There  are  now  more  volumes  of  law  reports  published 
every  year  than  at  that  time  constituted  a  lawyer's 
library."  In  the  eighty  years  which  elapsed  between  the 
close  of  the  Year-Books  and  the  end  of  the  i6th  cen- 
tury, Plowden,  Dyer,  and  Kielway  were  the  only  report- 
ers in  Westminster  Hall.  In  the  great  case  of  the 
POSTNATI,  Coke  tells  of  the  new  plan  which  he  adopted 
of  doing  justice  to  the  Judges  : — 

"And  now  that  I  have  taken  upon  me  to  make  a 

1  The  first  three  parts  were  published  in  1601,  the  fourth  and  fifth  in  1603, 
and  the  following  six  parts  between  1606  and  1616,  when  the  Reporter  pre- 
sided in  C.  P.  or  K.  B.  These  were  all  originally  printed  in  Norman 
French.  The  I2th  and  I3th  parts  did  not  see  the  light  till  1654  and  1658, 
when  they  appeared  in  an  English  translation  ;  the  use  of  French  in  law 
proceedings  having  been  forbidden  by  an  ordinance  of  the  Long  Parlia- 
ment. The  whole  have  been  lately  most  admirably  edited  by  my  friend 
Mr.  Farquhar  Fraser. 

'  There  were  then  only  twelve  volumes  of  Reports  extant,  of  which  nine 
were  YEAR-BOOKS.  The  compilations  called  "Abridgments,"  however, 
were  dreadfully  bulky. 


350  REIGN    OF    CHARLES    /. 

report  of  their  arguments,  I  ought  to  do  the  same  as 
fully,  truly,  and  sincerely  as  possibly  I  can  ;  howbeit, 
seeing  that  almost  every  judge  had  in  the  course  of  his 
argument  a  particular  method,  and  I  must  only  hold 
myself  to  one,  I  shall  give  no  just  offense  to  any,  if  I 
challenge  that  which  of  right  is  due  to  every  reporter, 
that  is,  to  reduce  the  sum  and  effect  of  all  to  such  a 
method  as,  upon  consideration  had  of  all  the  arguments, 
the  reporter  himself  thinketh  to  be  fittest  and  clearest 
for  the  right  understanding  of  the  true  reasons  and 
causes  of  the  judgment  and  resolution  of  the  case  in 
question."1 

Notwithstanding  the  value  of  his  Reports,  no  reporter 
could  venture  to  imitate  him.  He  represents  a  great 
many  questions  to  be  "  resolved"  which  were  quite  irrel- 
evant, or  never  arose  at  all  in  the  cause  ;  and  these  he 
disposes  of  according  to  his  own  fancy.  Therefore  he 
is  often  rather  a  codifier  or  legislator  than  a  reporter ; 
and  this  mode  of  settling  or  reforming  the  law  would 
not  now  be  endured,  even  if  another  lawyer  of  his  learn- 
ing and  authority  should  arise.  Yet  all  that  he  recorded 
as  having  been  adjudged  was  received  with  reverence.9 
The  popularity  of  his  Reports  was  much  increased  by  the 
publication  of  a  metrical  abstract  or  rubric  of  the  points 
determined,  beginning  with  the  name  of  the  plaintiff. 
Thus : — 

Hubbard  :  "  If  lord  impose  excessive  fine, 

The  tenant  safely  payment  may  decline. — (4  Rep.  27.) 
Caivdry  :  "  'Gainst  common  prayer  if  parson  say 

In  sermon  aught,  bishop  deprive  him  may." — (5  Rep.  I.) 

His  opus  magnum  is  his  Commentary  on  Littleton, 
which  in  itself  may  be  said  to  contain  the  whole  com- 
mon law  of  England  as -it  then  existed.  Notwithstand- 
ing its  want  of  method  and  its  quaintness,  the  author 
writes  from  such  a  full  mind,  with  such  mastery  over  his 
subject,  and  with  such  unbroken  spirit,  that  every  law 
student  who  has  made,  or  is  ever  likely  to  make,  any 
proficiency,  must  peruse  him  with  delight. 

He  apologizes  for  writing  these  Commentaries  in  Eng- 
lish, "  for  that  they  are  an  introduction  to  the  knowledge 
of  the  national  law  of  the  realm  ;  a  work  necessary,  and 

1  7  Rep,  4  a.  *  Bacon's  Works,  v.  473. 


ED  WARD    COKE.  351 

yet  heretofore  not  undertaken  by  any,  albeit  in  all  other 
professions  there  are  the  like.     I  cannot  conjecture  that 
the  general  communicating   these   laws  in  the  English 
tongue  can  work  any  inconvenience."1 
This  work,  which  he  thus  dedicates — 

"H^EC  EGO   GRAND^EVUS  POSUI  TIBI,   CANDIDE  LECTOR" — 

was  the  valuable  fruit  of  his  leisure  after  he  had  been 
tyrannically  turned  out  of  office,  and  in  composing  it  he 
seems  to  have  lost  all  sense  of  the  ill  usage  under  which 
he  had  suffered,  for  he  refers  in  his  Preface  to  "the  reign 
of  our  sovereign  lord  King  James  of  famous  and  ever 
blessed  memory."* 

The  First  Institute  may  be  studied  with  advantage, 
not  only  by  lawyers,  but  by  all  who  wish  to  be  well 
acquainted  with  the  formation  of  our  polity,  and  with 
the  manners  and  customs  prevailing  in  England  in  times 
gone  by.  If  Hume,  who  was,  unfortunately,  wholly  un- 
acquainted with  our  juridical  writers,  had  read  the  chap- 
ters on  knights'  ^etjvice,  $ocage,  (ftyand  $et[jeantic,  ilfnaofeal- 
tnoigne,  Burjgage,  and  "JftUenage,  he  would  have  avoided 
various  blunders  into  which  he  had  fallen  in  his  agree- 
able but  flimsy  sketch  of  our  early  annals.  After  Bacon, 
in  his  Essays  and  in  his  philosophical  writings,  had  given 
specimens  of  vigorous  and  harmonious  Anglicism  which 
have  never  been  excelled,  Coke,  it  must  be  confessed, 
was  sadly  negligent  of  style  as  well  as  of  arrangement : 
— but  he  sometimes  accidentally  falls  into  rhythmical 
diction,  as  in  his  concluding  sentence  :  "And,  for  a  fare- 
well to  our  jurisprudent,  I  wish  unto  him  the  gladsome 
light  of  jurisprudence,  the  lovelinesse  of  temperance, 
the  stabilitie  of  fortitude,  and  the  soliditie  of  justice." 

His  other  "  Institutes,"  as  he  called  them,  published 
under  an  order  of  the  House  of  Commons,'  are  of  very 
inferior  merit.  The  Second  Institute  contains  an  expo- 

1  Preface.  *  P.  xxxvii. 

1  Journals,  I2th  May,  1641.  "  Upon  debate  this  day  had  in  the  Commons 
House  of  Parliament,  the  said  House  did  then  desire  and  hold  it  fit  that 
the  heir  of  Sir  Edward  Coke  should  publish  in  print  the  Commentary  on 
Magna  Charta,  the  Pleas  of  the  Crown,  and  the  Jurisdiction  of  Courts,  ac- 
cording to  the  intention  of  the  said  Sir  Edward  Coke  ;  and  that  none  but 
the  heir  of  the  said  Edward  Coke,  or  he  that  shall  be  authorized  by  him,  do 
presume  to  publish  in  print  any  of  the  aforesaid  books  or  any  copy  hereof." 
This  order  was  made  the  very  same  day  on  which  the  Earl  of  Straflbrd  w«i 
beheaded. 


352  REIGN    OF    CHARLES    I. 

sition  of  MAGNA  CHARTA  and  other  ancient  statutes; 
the  Third  treats  of  criminal  law,'  and  the  Fourth  explains 
the  jurisdiction  of  all  courts  in  the  country,  from  the 
Court  of  Parliament  to  the  Court  of  Pie  Poudre.  He 
was  likewise  the  author  of  a  Book  of  "  Entries"  or  legal 
precedents  ;  a  treatise  on  Bail  and  Mainprize  ;  a  compen- 
dium of  Copyhold  Law,  called  "  The  Complete  Copy- 
holder;"  and  "A  Reading  on  Fines  and  Recoveries,' 
which  was  regarded  with  high  respect  till  these  vener- 
able fictions  were  swept  away. 

He  represents  himself  as  taking  no  great  delight  in 
legal  composition,  and  I  most  heartily  sympathize  with 
the  feelings  he  expresses  : — 

"  Whilst  we  were  in  hand  with  these  four  parts  of  the 
Institutes,  we  often  having  occasion  to  go  into  the  city, 
and  from  thence  into  the  country,  did  in  some  sort  envy 
the  state  of  the  honest  plowman  and  other  mechanics; 
for  one,  when  he  was  at  his  work,  would  merrily  sing, 
and  the  plowman  whistle  some  self-pleasing  tune,  and 
yet  their  work  both  proceeded  and  succeeded ;  but  he 
that  takes  upon  him  to  write,  doth  captivate  all  the 
faculties  and  powers  both  of  his  mind  and  body,  and 
must  be  only  attentive  to  that  which  he  collecteth, 
without  any  expression  of  joy  or  cheerfulness  whilst  he 
is  at  his  work."  * 

He  had  a  passionate  attachment  to  his  own  calling, 
and  he  was  fully  convinced  that  the  blessing  of  Heaven 
was  specially  bestowed  on  those  who  followed  it.  Thus 
he  addresses  the  young.beginner : — 

"  For  thy  comfort  and  encouragement,  cast  thine  eyes 
upon  the  sages  of  the  law,  that  have  been  before  thee, 
and  never  shalt  thou  find  any  that  hath  excelled  in  the 
knowledge  of  the  laws  but  hath  sucked  from  the  breasts 
of  that  divine  knowledge,  honesty,  gravity,  and  integ- 
rity, and,  by  the  goodness  of  God,  hath  obtained  a 
greater  blessing  and  ornament  than  any  other  profession 

1  The  most  curious  chapter  is  on  "conjuration,  witchcraft,  sorcery,  or 
enchantment,"  in  which  he  tells  us  of  wizards 

"  By  rhimes  that  can  pull  down  full  soon 
From  lofty  sky  the  wandering  moon  !" 

and  highly  applauds  the  legislature  for  punishing  with  death  "  such  great 
abominations.  *  Epilogue  to  4th  Institute. 


ED  WARD     COKE.  353 

to  their  family  and  posterity.  It  is  an  undoubted  truth, 
that  the  just  shall  flourish  as  the  palm  tree,  and  spread 
abroad  as  the  cedars  of  Lebanus.  Hitherto,  I  never  saw 
any  man  of  a  loose  and  lawless  life  attain  to  any  sound 
and  perfect  knowledge  of  the  said  laws;  and  on  the 
other  side,  I  never  saw  any  man  of  excellent  judgment 
in  the  laws  but  was  withal  (being  taught  by  such  a  mas- 
ter) honest,  faithful  and  virtuous."  "  Wherefore,"  he 
says,  "  a  great  lawyer  never  dies  improlis  ant  intestatus, 
and  his  posterity  continue  to  flourish  to  distant  gen- 
erations." ' 

In  his  old  age  he  agreed  with  the  Puritans,  but  he 
continued  to  support  the  Established  Church ;  and,  a 
great  peer  threatening  to  dispute  the  rights  of  the  Dean 
and  Chapter  of  Norwich,  he  stopped  him  by  saying, 
"  If  you  proceed,  I  will  put  on  my  cap  and  gown,  and 
follow  the  cause  through  Westminster  Hall." a  From  his 
large  estates  he  had  considerable  ecclesiastical  patron- 
age, which  he  always  exercised  with  perfect  purity,  say- 
ing, in  the  professional  jargon  of  which  he  was  so  fond, 
"  Livings  ought  to  pass  by  Livery  and  Seizin,  and  not 
by  Bargain  and  Sale"  3 

He  certainly  was  a  very  religious,  moral,  and  temper- 
ate man,  although  he  was  suspected  of  giving  to  LAW 
a  considerable  portion  of  those  hours  which,  in  the  dis- 
tribution of  time,  he  professed  to  allot  to  PRAYER  and 
the  MUSES,  according  to  his  favorite  Cantalena, — 

"  Sex  horas  somno,  totidem  des  legibjis  sequis, 

Quatuor  orabis,  des  epulisque  duas, 
Quod  superest  ultra  sacris  largire  camcenis."  4 

His  usual  style  of  living  was  plain,  yet  he  could  give 
very  handsome  entertainments.  Lord  Bacon  tells  us 

1  See  Preface  to  "  Second  Report." 

*  Lloyd's  State  Worthies,  p.  825. 

*  He  tried  to  carry  a  law  that  on  every  presentation  the  patron  should  b« 
sworn  against  simony,  as  well  as  the  incumbent. — Roger  Coke's  Vindita- 
tion,-p.  266. 

4  Thus  varied : — 

"  Six  hours  to  law,  to  soothing  slumber  seven. 

Eight  to  the  world  allow — the  rest  to  Heaven." 
Or— 

"  Six  hours  to  law,  to  soothing  slumbers  seven, 
Ten  to  the  world  allot,  and  all  to  Heaven." 

See  Macaulay's  Essays,  vol.  i.  p.  367. 
X— 23 


354  REIGN    OF    CHARLES    I. 

that  he  was  wont  to  say,  when  a  great  man  came  to  din 
ner  at  his  house  unexpectedly,  '  Sir,  since  you  sent  me 
no  notice  of  your  coming,  you  must  dine  with  me ;  but, 
if  I  had  known  of  it  in  due  time,  I  would  have  dined 
with  you.'  "  '  He  once  had  the  honor  of  giving  a  dinner 
to  Queen  Elizabeth,  and  she  made  him  a  present  of  a 
gilt  bowl  and  cover  on  the  christening  of  one  of  his 
children  ;a  but  he  was  never  very  anxious  about  the  per- 
sonal favor  of  the  sovereign,  and  he  considered  it  among 
the  felicities  of  his  lot  that  he  had  obtained  his  prefer- 
ments nee  precibus,  nee  pretio.  Notwithstanding  his  in- 
dependence, King  James  had  an  excellent  opinion  of 
him,  and,  having  failed  in  his  attempts  to  disgrace  him, 
used  to  say,  "  Whatever  way  that  man  falls,  he  is  sure  to 
alight  on  his  legs." 

Sir  Edward  Coke  was  a  handsome  man,  and  was  very 
neat  in  his  dress,  as  we  are  quaintly  informed  by  Lloyd  : 
— "  The  jewel  of  his  mind  was  put  in  a  fair  case,  a  beau- 
tiful body  with  comely  countenance ;  a  case  which  he 
did  wipe  and  keep  clean,  delighting  in  good  clothes,  well 
worn  being  wont  to  say  that  the  outward  neatness  of 
out  bodies  might  be  a  monitor  of  purity  to  our  souls."1 
"  The  neatness  of  outward  apparel,"  he  himself  used  to 
say,  "reminds  us  that  all  ought  to  be  clean  within."4 
The  only  amusement  in  which  he  indulged  was  a  game 
of  bowls ;  but,  for  the  sake  of  his  health,  he  took  daily 
exercise  either  in  walking  or  riding,  and,  till  turned  of 
eighty,  he  never  had  known  any  illness  except  one 
slight  touch  of  the  gout. 

His  temper  appears  to  have  been  bad,  and  he  gave 
much  offense  by  the  arrogance  of  his  manners.  He  was 
unamiable  in  domestic  life ;  and  the  wonder  rather  is, 
that  Lady  Hatton  agreed  to  marry  him,  than  that  she 
refused  to  live  with  him.  Nor  does  he  seem  to  have 
formed  a  friendship  with  any  of  his  contemporaries. 
Yet  they  speak  of  him  with  respect,  if  not  with  fondness. 
"  He  was,"  said  Spelman,  "  the  founder  of  our  legal 


1  Apophthegms,  112. 

*  Nichol's  Progresses  of  Elizabeth,  iii.  467,  568. 


1  Worthies,  ii.  297. 

4  There  are  many  portraits  and  old  engravings  of  him  extant, — almost  all 
representing  him  in  his  judicial  robes, — and  exhibiting  features  which,  ac- 
cording to  the  rules  of  physiognomy,  do  not  indicate  high  genius. 


ED  WARD     COKE.  355 

storehouse,  and,  which  his  rivals  must  confess,  though 
their  spleen  should  burst  by  reason  of  it,  the  head  of 
our  jurisprudence."1  Camden  declared  that  "  he  had 
highly  obliged  both  his  own  age  and  posterity  ;"*  and  Ful- 
ler prophesied  that  he  would  be  admired  "  while  Fame 
has  a  trumpet  left  her,  and  any  breath  to  blow  therein."3 

Modern  writers  have  treated  him  harshly.  For  ex- 
ample, Hallam,  after  saying  truly  that  he  was  "proud 
and  overbearing,"  describes  him  as  "  a  flatterer  and  tool 
of  the  Court  till  he  had  obtained  his  ends."4  But  he 
does  not  senni  at  all  to  have  mixed, in  politics  till,  at  the 
request  of  Burleigh,  he  consented  to  become  a  law 
officer  of  the  Crown  ;  and  although,  in  that  capacity,  he 
unduly  stretched  the  prerogative,  he  at  no  time  betrayed 
any  symptom  of  sycophancy  or  subserviency.  From  the 
moment  when  he  was  placed  on  the  bench,  his  public 
conduct  was  irreproachable.  Our  Constitutional  His- 
torian is  subsequently  obliged  to  confess  that  "  he  be- 
came the  strenuous  asserter  of  liberty  on  the  principles 
of  those  ancient  laws  which  no  one  was  admitted  to 
know  so  well  as  himself;  redeeming,  in  an  intrepid  and 
patriotic  old  age,  the  faults  which  we  cannot  avoid  per- 
ceiving in  his  earlier  life.'"  In  estimating  the  merit  of 
his  independent  career,  which  led  to  his  fall  and  to  his 
exclusion  from  office  for  the  rest  of  his  days,  we  are  apt 
not  sufficiently  to  recollect  the  situation  of  a  "  disgraced 
courtier  "  in  the  reign  of  James  I.  Nowadays,  a  po- 
litical leader  often  enhances  his  consequence  by  going 
into  opposition,  and  sometimes  enjoys  more  than  ever 
the  personal  favor  of  the  Sovereign.  But,  in  the  be- 
ginning of  the  1 7th  century,  any  one  who  had  held  high 
office,  if  forbidden  "  to  come  within  the  verge  of  the 
Court" — whether  under  a  judicial  sentence  or  not, — was 
supposed  to  have  a  stain  affixed  to  his  character,  and 
he  and  those  connected  with  him  were  shunned  by  all 
who  had  any  hope  of  rising  in  the  world. 

Most  men,  I  am  afraid,  would  rather  have  been  Bacon 
than  Coke.  The  superior  rank  of  the  office  of  Chan- 
cellor, and  the  titles  of  Baron  and  Viscount,  would  now 
go  for  little  in  the  comparison  ;  but  the  intellectual  and 

T\el.  Spelm.  p.  150.  •  Britannia,  Iceni,  p.  351. 

1  VY.ivthies.  Norfolk,  p.  251.  4  Const  Hist.  i.  455.  *  1°.  476. 


356  REIGN    OF    CHARLES    I. 

the  noble-minded  must  be  in  danger  of  being  captivated 
too  much  by  Bacon's  stupendous  genius  and  his  brilliant 
European  reputation,  while  his  amiable  qualities  win 
their  way  to  the  heart.  Coke,  on  the  contrary,  appears 
as  a  deep  but  narrow-minded  lawyer,  knowing  hardly 
anything  beyond  the  wearisome  and  crabbed  learning 
of  his  own  craft,  famous  only  in  his  own  country,  and 
repelling  all  friendship  or  attachment  by  his  harsh  man- 
ners. Yet,  when  we  come  to  apply  the  test  of  moral 
worth  and  upright  conduct,  Coke  ought,  beyond  all 
question,  to  be  preferred.  He  never  betrayed  a  friend, 
or  truckled  to  an  enemy.  He  never  tampered  with  the 
integrity  of  judges,  or  himself  took  a  bribe.  When  he 
had  risen  to  influence,  he  exerted  it  strenuously  in  sup- 
port of  the  laws  and  liberties  of  his  country,  instead  of 
being  the  advocate  of  every  abuse  and  the  abettor  of 
despotic  sway.  When  he  lost  his  high  office,  he  did  not 
retire  from  public  life  "  with  wasted  spirits  and  an  op- 
pressed mind,"  overwhelmed  with  the  consciousness  of 
guilt, — but,  bold,  energetic,  and  uncompromising,  from 
the  lofty  feeling  of  integrity,  he  placed  himself  at  the 
head  of  that  band  of  patriots  to  whom  we  are  mainly 
indebted  for  the  free  institutions  which  we  now  enjoy. 

Lady  Hatton,  his  second  wife,  survived  him  many 
years.  On  his  death  she  took  possession  of  the  house 
at  Stoke  Pogis,  and  there  she  was  residing  when  the  civil 
war  broke  out.  Having  strenuously  supported  the  Par- 
liament against  the  King, — when  Prince  Rupert  ap- 
proached her  with  a  military  force  she  fled,  leaving  be- 
hind her  a  letter  addressed  to  him,  in  which,  having 
politely  said,  "  I  am  most  heartily  sorry  to  fly  from  this 
dwelling,  when  I  hear  your  Excellency  is  coming  so 
near  it,  which,  however,  with  all  in  and  about  it,  is  most 
willingly  exposed  to  your  pleasure  and  accommoda- 
tion," she  gives  him  this  caution  :  "  The  Parliament  is 
the  only  firm  foundation  of  the  greatest  establishment 
the  King  or  his  posterity  can  wish  and  attain,  and  there- 
fore, if  you  should  persist  in  the  unhappiness  to  support 
any  advice  to  break  the  Parliament  upon  any  pretense 
whatsoever,  you  shall  concur  to  destroy  the  best  ground- 
work for  his  Majesty's  prosperity."1 

1  British  Museum.     Stoke   Pogis   House,   so  memorable  in  our  legal 


EDWARD    COKE.  357 

Sir  Edward  Coke,  by  his  first  wife,  had  seven  sons, 
but  none  of  them  gained  any  distinction  except  Clement, 
the  sixth,  who,  being  a  member  of  the  House  of  Com- 
mons at  the  beginning  of  the  reign  of  Charles  I.,  in  the 
debate  upon  the  impeachment  of  the  Duke  of  Bucking, 
ham,  had  the  courage  to  use  these  words :  "  It  is  better 
to  die  by  an  enemy  than  to  suffer  at  home :"  for  which 
there  came  a  message  of  complaint  from  the  Crown,  and 
he  would  have  been  sent  to  the  Tower,1  but  for  the  great 
respect  for  the  ex-Chief  Justice,  who  was  sitting  by  his 
side,  and  disdained  to  make  any  apology  for  him. 

Roger  Coke,  a  grandson  of  the  Chief  Justice,  in  the 
year  1660  published  a  book  entitled  "Justice  Vindicated," 
which,  although  without  literary  merit,  contains  many 
curious  anecdotes  of  the  times  in  which  the  author 
lived. 

In  1747,  Thomas  Coke,  the  lineal  heir  of  the  Chief 
Justice,  was  raised  to  the  peerage  by  the  titles  of  Vis- 
count Coke  and  Earl  of  Leicester;  but  on  his  death  the 
male  line  became  extinct.  The  family  was  represented, 
through  a  female,  by  the  late  Thomas  Coke,  Esq.,  who, 
inheriting  the  Chief  Justice's  estate  and  love  of  liberty, 
after  representing  the  county  of  Norfolk  in  the  House 
of  Commons  for  half  a  century,  was,  in  1837,  created 
Viscount  Coke  and  Earl  of  Leicester,  titles  now  enjoyed 
by  his  son.  Holkham  I  hope  may  long  prove  an  illus- 
tration of  the  saying  of  the  venerable  ancestor  of  this 
branch  of  the  Cokes,  that  "  the  blessing  of  Heaven  spe- 
cially descends  upon  the  posterity  of  a  great  lawyer." 

annals,  one  of  the  places  of  confinement  of  Charles  I.  when  in  the  power  of 
the  Parliament,  and  celebrated  by  Gray  in  his  "  Long  Story,"  having 
passed  from  the  Gayers,  the  Halseys,  and  the  Penns,  is  now  the  property 
of  my  valued  friend  and  colleague,  the  Right  Honorable  Henry  Labouchere. 
A  column  has  been  erected  in  the  park  to  the  memory  of  Sir  Edward  Coke  \ 
but  there  is  no  other  vestige  in  the  parish  of  his  existence,  and  there  are  no 
traditional  stories  concerning  him  in  the  neighborhood. 
1  2  Parl.  Hist.  50. 


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